On Appeal from the United States District Court for the District of New Jersey: D.C. Criminal Nos. 89-00006-01, 89-00006-02.
Sloviter, Hutchinson, and Cowen, Circuit Judges.
Defendants, who were convicted of conspiracy to manufacture and the manufacturing of a substance which was temporarily designated as a Schedule I controlled substance, contend that the statutory delegation to the United States Attorney General of the power to temporarily schedule drugs is unconstitutional and that his subdelegation of that power by regulation to the Drug Enforcement Agency (DEA) is unauthorized.
Defendants Daniel and Lyrissa Touby, husband and wife, were arrested January 6, 1989 at their home in Fair Lawn, New Jersey, and charged with conspiring to manufacture and knowingly and intentionally manufacturing 4-methylaminorex, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1) (1988) and 21 U.S.C. § 846 (1988). 4-methylaminorex, a stimulant referred to as Euphoria, was placed on Schedule I by the DEA Administrator on October 15, 1987 pursuant to the temporary scheduling provisions of 21 U.S.C. § 811(h) (1988). The Toubys filed a pretrial motion to dismiss the indictment challenging the temporary scheduling of Euphoria, which the district court denied.
Daniel and Lyrissa Touby were convicted following a jury trial and sentenced to forty-two and twenty-seven months' imprisonment, respectively. Defendants filed a timely appeal and now renew their attack on the temporary scheduling process and on the sufficiency of the evidence as to Lyrissa Touby, an issue raised by her in a motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29, and rejected by the district court. In addition, Daniel Touby has raised certain other contentions in his pro se brief.
We turn first to the issue of the constitutionality of the delegation and subdelegation of the temporary scheduling power.
In setting forth the background and legislative history of both the permanent and temporary scheduling provisions, we borrow liberally from the opinion of Judge Ackerman of the district court. See 710 F. Supp. 551, 552-55 (D.N.J. 1989).
In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act, Pub. L. No. 91-513, 84 Stat. 1236 (1970); Title II of that Act is known as the Controlled Substances Act (CSA) (current version at 21 U.S.C. §§ 801-904 (1988)). The statute provides for placement of certain controlled substances on five different schedules. Scheduling a drug effectively criminalizes its use, manufacture and distribution, and determines the nature of the offense and the length of the sentence that may be imposed. The schedules range from Schedule I, listing substances that have a high potential for abuse, no accepted medical use in treatment in the United States, and a lack of accepted safety for use of the substance under medical supervision, to Schedule V, listing substances with a relatively low potential for abuse, a currently accepted medical use in treatment in the United States, and abuse of which may lead to limited dependence relative to the drugs on Schedules I through IV. See 21 U.S.C. § 812(b)(1), (5). The penalties vary accordingly.
The statute lists certain substances on each of the five schedules, but also provides that the Attorney General can add substances to the schedules, remove some, and transfer between the schedules. See 21 U.S.C. § 811(a). The statute circumscribes the Attorney General's power to add substances in several respects. First, it lists the factors that must be considered for each substance proposed to be controlled, i.e., (1) its actual or relative potential for abuse; (2) scientific evidence of its pharmacological effect, if known; (3) the state of current scientific knowledge regarding the drug or other substance; (4) its history and current pattern of abuse; (5) the scope, duration, and significance of abuse; (6) what, if any, risk there is to the public health; (7) its psychic or physiological dependence liability; and (8) whether the substance is an immediate precursor of a substance already controlled under this subchapter. Id. § 811(c). Second, the statute requires that the Attorney General obtain a "scientific and medical" evaluation of the substance from the Secretary of Health and Human Services, which is binding if the Secretary recommends that the Attorney General should not schedule the substance. Id. § 811(b). Finally, before adding a substance to the schedules, the Attorney General must follow the notice and hearing provisions of the Administrative Procedure Act (APA), codified at 5 U.S.C. §§ 551-559. 21 U.S.C. § 811(a).
In 1973, pursuant to 21 U.S.C. § 871(a), the Attorney General promulgated a regulation subdelegating performance of the functions delegated to him by Congress under the CSA to the DEA Administrator. See 28 C.F.R. § 0.100(b) (1986).*fn1
Because the process of permanent scheduling contained an inevitable lag time, Congress amended the CSA in 1984 to permit the Attorney General to schedule substances on a temporary basis to "avoid an imminent hazard to the public safety" after consideration of those factors set out in 21 U.S.C. § 811(c)(4), (5) and (6), which relate to the history, current pattern, scope, duration and significance of abuse of the substance, and the risk it poses to the public health. 21 U.S.C. § 811(h)(1), (3). There is to be notice of the Attorney General's intention to temporarily schedule a substance published in the Federal Register and transmitted to the Secretary of HHS, whose comments must be taken into consideration. Id. § 811(h)(4). The duration of temporary scheduling of a substance is limited to one year with a possible extension up to six months. Id. § 811(h)(2).
The Attorney General amended the subdelegation regulation on July 1, 1987, assigning to the DEA Administrator the "functions vested in the Attorney General by the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended." 28 C.F.R. § 0.100(b) (1989). Thereafter, the DEA Administrator gave notice of his intention to temporarily schedule 4-methylaminorex as a Schedule I substance. 52 Fed. Reg. 30,174 (1987). The Administrator stated that the drug was a new and potent central nervous system stimulant that is clandestinely produced which can cause seizures, loss of consciousness, respiratory depression and death. Id. He concluded that the substance posed "an imminent hazard to public safety" and met the three criteria for temporary scheduling. Id. at 30,174-75. Three months later, the DEA Administrator issued an order temporarily scheduling 4-methylaminorex on Schedule I for a year. See 52 Fed. Reg. at 38,225-26 (1987). Concurrently, the DEA Administrator issued a notice of proposed rulemaking to place the substance permanently on Schedule I at the end of the one-year temporary period. 53 Fed. Reg. 40,390 (1988). The following year, the DEA Administrator extended the temporary scheduling for six months. See 53 Fed. Reg. 40,061 (1988).
As an initial matter, we consider the effect on our jurisdiction of the provision of the statute that an order issued under section 811(h)(1) (the temporary scheduling section) "is not subject to judicial review." 21 U.S.C. § 811(h)(6). Although the government's position is that jurisdiction exists and defendants do not address the issue, it is axiomatic that "this court has a 'special obligation' to satisfy itself of its own jurisdiction," McNasby v. Crown Cork and Seal Co., 832 F.2d 47, 49 (3d Cir. 1987) (citing Bender v. Williamsport Area School Dist., 475 U.S. 534, 89 L. Ed. 2d 501, 106 S. Ct. 1326 (1986)), cert. denied, 485 U.S. 936, 108 S. Ct. 1112, 99 L. Ed. 2d 273 (1988), as well as the jurisdiction of the court under review. Pomper v. Thompson, 836 F.2d 131, 132 (3d Cir. 1987).
When constitutional questions are at issue, "the availability of judicial review is presumed and [courts] will not read a statutory scheme to take the 'extraordinary' step of foreclosing jurisdiction unless Congress' intent to do so is manifested by 'clear and convincing' evidence." Califano v. Sanders, 430 U.S. 99, 109, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977). Nothing in the legislative history of the statute suggests that Congress meant to prevent those facing criminal charges to be foreclosed from attacking the constitutionality of the delegation of power to temporarily schedule drugs contained in section 811. Every court that has considered whether section 811(h)(6) precludes consideration of the constitutionality of the delegation of the power to temporarily schedule drugs under section 811 has explicitly or implicitly concluded that constitutional review is not precluded. See United States v. Emerson, 846 F.2d 541, 544 (9th Cir. 1988); United States v. Spain, 825 F.2d 1426 (10th Cir. 1987); United States v. Hovey, 674 F. Supp. 161 (D.Del. 1987); United States v. Pees, 645 F. Supp. 697 (D.Colo. 1986). We agree with these courts that, whatever the import of the limitation on judicial review, it does not extend to review of constitutional challenges.
Defendants raise what is in essence a facial challenge to the temporary scheduling provision. Although at oral argument their counsel stated that this was also an as-applied challenge, defendants do not contend that Euphoria cannot be scheduled as a Schedule I narcotic or that the temporary scheduling of the substance did not meet the standards set forth in 21 U.S.C. § 811(h). Accordingly, we look only to the face of the statute and not at the particular properties of Euphoria or the justifications given by the DEA Administrator for its temporary scheduling.*fn2
Defendants' delegation challenge raises three distinct questions: first, whether Congress' delegation to the Attorney General of the power to temporarily schedule was constitutional; second, whether the Attorney General was authorized by Congress to subdelegate this power to the Administrator of the DEA; and third, whether the Attorney General properly exercised his authority to subdelegate the power to the DEA.
1. Delegation to Attorney General
Article I, section 1 of the Constitution provides that "all legislative powers herein granted shall be vested in a Congress of the United States." U.S. Const. art. I, § 1. This section "is both a grant of power to the Congress and limitation upon its use." R. Pierce, S. Shapiro, P. Verkuil, Administrative Law & Process 51 (1985). Congress may not delegate its legislative power to others. Although commentators have noted the dormancy of the non-delegation doctrine, see, e.g., 1 K. Davis, Administrative Law of the Eighties §§ 3.1-1 to 3.1-3 (Supp. 1989); 1 J. Stein, G. Mitchell, B. Mezines, Administrative Law § 3.03 at 3-102 to 3-104 & n. 84 (1988) [hereinafter cited as J. Stein], the Supreme Court recently reaffirmed its vitality in Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).
The Court reiterated the long-established principle that "'the integrity and maintenance of the system of government ordained by the Constitution,' mandate that Congress generally cannot delegate its legislative power to another Branch." Id. at 654 (quoting Field v. Clark, 143 U.S. 649, 692, 36 L. Ed. 294, 12 S. Ct. 495 (1892)). However, the Court also emphasized that the Constitution does not prohibit Congress from obtaining assistance from coordinate branches. Mistretta, 109 S. Ct. at 654. Thus, Congress may delegate authority to a coordinate branch when it lays "down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform." Id. (quoting J.W. Hampton Jr., & Co. v. United States, 276 U.S. 394, 409, 72 L. Ed. 624, 48 S. Ct. 348 (1928)) (emphasis added). The Court described its application of this general rule as having "been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives." 109 S. Ct. at 654.
In Mistretta the Court considered, inter alia, the constitutionality of Congress' delegation to the Federal Sentencing Commission of the power to promulgate the Federal Sentencing Guidelines. The Court upheld the delegation because Congress specified the goals the Commission must aim for, the final product of the delegation, specific factors the Commission must consider, and limits on the Commission's power. Id. at 655-57. These four factors are relevant but not exclusive. Other factors the Court has identified when determining whether delegation is proper are the availability of judicial review, see Carlson v. Landon, 342 U.S. 524, 542-44, 96 L. Ed. 547, 72 S. Ct. 525 (1952), the rapidity of changes in the matter being regulated, see Yakus v. United States, 321 U.S. 414, 432, 88 L. Ed. 834, 64 S. Ct. 660 (1944), the complexity of the field, see Mistretta, 109 S. Ct. at 654, and the existence of "well-known and generally acceptable standards" in the field being regulated, Fahey v. Mallonee, 332 U.S. 245, 250, 91 L. Ed. 2030, 67 S. Ct. 1552 (1947).
In applying the "intelligible principle" test, the Court has given Congress given wide latitude in delegating its powers. With the exception of the two 1935 cases invalidating statutes as unconstitutional delegations of power, see Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L. Ed. 446, 55 S. Ct. 241 (1935), and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 79 L. Ed. 1570, 55 S. Ct. 837 (1935), the Court has upheld every congressional delegation of power that has been presented to it, even where Congress has provided negligible standards for the delegatee to follow. Mistretta, 109 S. Ct. at 655; 1 J. Stein at § 3.03 at 3-84 to 3-85.
Defendants argue that a more stringent non-delegation analysis applies when, as in this case, the delegatee is empowered to create crimes. They point out that both Panama Refining and Schechter Poultry involved a delegation of authority to criminalize activity.
The issue in Panama Refining involved the validity of Congress' delegation to the President in the National Industrial Recovery Act (NIRA) of authority to prohibit the interstate transport of petroleum produced or withdrawn from storage in violation of state law. The Court struck down the delegation because the statute did not declare any policy as to the transportation of the excess production, did not qualify the President's authority, and did not establish any criterion "to govern the President's course." 293 U.S. at 415. In Schechter Poultry, the Court considered another provision of the NIRA authorizing the President to approve codes of fair competition emanating from industry groups or which were prescribed by the President himself. 295 U.S. at 521-22. Violation of the codes was a crime. The Court found that Congress overstepped its power to delegate because it failed to establish the standards of legal obligation, leaving that decision to the President or the trade or industry involved. Id. at 541-42.
There is language in subsequent cases which focuses on the fact that both of these cases involved criminal conduct. In Fahey v. Mallonee, 332 U.S. 245, 91 L. Ed. 2030, 67 S. Ct. 1552 (1947), the Court upheld the delegation of the terms by which conservators could be appointed for savings and loan associations, noting that the "discretion to make regulations to guide supervisory action in such matters may be constitutionally permissible while it might not be allowable to authorize creation of new crimes in uncharted fields." Id. at 250. The Court commented that both Schechter Poultry and Panama Refining involved the delegation of the power "to make federal crimes of acts which had never been such before and to devise novel rules of law in a field in which there had been no settled law or custom." Id. at 249. See ...