Transcript

IN THE SUPREME COURT OF THE UNITED STATES

DANIEL TOUBY, ET UX., Petitioners v. UNITED STATES

No. 90-6282

April 17, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:08 a.m.

APPEARANCES:

JOEL I. KLEIN, ESQ., Washington, D.C.; on behalf of the Petitioner.

JEFFREY P. MINEAR, ESQ., Assistant to the Solicitor General; Department of Justice; Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

10:08 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument this morning first in No. 90-6282, Daniel Touby v. the United States.

Mr. Klein.

ORAL ARGUMENT OF JOEL I. KLEIN ON BEHALF OF THE PETITIONERS

MR. KLEIN: Mr. Chief Justice, and may it please the Court:

The statute that we challenge -- the temporary scheduling provision of the Controlled Substances Act gives the Attorney General unchecked power to adopt and then to enforce criminal prohibitions against previously lawful behavior. We think the statute raises two important structural issues concerning Congress' power to delegate criminal rulemaking authority.

First, may Congress combined in one government official two core separated functions -- the power to create a crime and the power to prosecute individual violators? And second, may Congress bar judicial review of criminal rulemaking determinations, either completely as we read the statute, or at least until after someone is indicted, as the Government reads the statute? Our argument is that neither practice -- neither practice, much less both in the same statute is consistent with a government of properly separated powers.

Now, before addressing each of these issues individually, I'd like to emphasize at the outset how unprecedented this statute truly is. This Court of course has never approved either practice. And that's not surprising, because for all intents and purposes Congress has never adopted these kind of practices in any previous statute. So far as we can tell no statute gives the Attorney General or any other official the power to make and enforce a criminal sanction against purely private conduct.

The example that the Government gives -- the only example I presume that they were able to find -- is regulations controlling prison access. But we think that's so entirely distinguishable, because the Government there and the Attorney General is responsible for the operation of that building much as any department would be for the operation of its own buildings. But that's very different from purely private conduct.

QUESTION: What about the President?

MR. KLEIN: The President? I'm not sure I understand.

QUESTION: There are a lot of statutes that give many Federal officials the right to define crimes -- the Secretary of HHS, for example. And the President can tell the Secretary of HHS, no, I don't want it defined this way, I want it defined another way. Now, that crime would be prosecuted after it's defined by HHS by the Attorney General. But the President can also tell the Attorney General, yes, I want it prosecuted, no, I don't want it prosecuted.

MR. KLEIN: Yes, Justice Scalia, but I think -- I think there are two distinctions there. First of all, in both instances, that is first as you say the President has to tell them -- the HHS Secretary -- how he wants the crime defined. Now, in that regard the HHS Secretary doesn't have to follow the President. And if he doesn't in that respect, of course he's removable by Congress. So --

QUESTION: Did the Attorney General personally prosecute this case?

MR. KLEIN: No, he didn't, but he got --

QUESTION: So it's the same situation, isn't it?

MR. KLEIN: I don't think so.

QUESTION: I mean it isn't that the Attorney General both -- in fact did the Attorney General personally do you think define the drug offense or do you think -- he delegated that to DEA, didn't he?

MR. KLEIN: He did.

QUESTION: So you had two different Federal officials, one making the determination of what's a crime, and another one, a United States attorney presumably, making the prosecution which is the same thing you have with HHS.

MR. KLEIN: I don't think it is in a structural sense, Justice Scalia. And I think the distinction is important. I understand as the statute worked out there were two judgments here. This statute, however, uniquely I suggest, gives one department both functions. Now, I think there were both practical as well as structural considerations when you say HHS passes the statute, and then the Government -- the Justice Department -- enforces it.

And let me suggest to you that's not an argument that's unique to me. That's an argument the Government makes when it says that the Department of -- of EPA should not have criminal enforcement powers. The Justice Department opposes that same look. There should be two separated judgments here. One is to define the crime and the other is to prosecute the violator.

QUESTION: You know I expect the Justice Department as a whole today is larger than the entire Federal Government was oh, perhaps, certainly when -- in the first century of -- of the republic. So that, you know, the diversity of personnel that you have would be DEA making the -- one decision, the United States attorney making the other, is exactly the diversity you would have had in the entire Federal Government had two different departments done this -- the work.

MR. KLEIN: I -- with respect, I don't think that's an accurate perception, and let me suggest I think the legislative history suggests otherwise as well. And that is to say I think the Justice Department, at least, and the DEA -- its unique perspective is a law enforcement perspective. And I think that's not true of other regulatory agencies or departments. And I --

QUESTION: What is your constitutional point, Mr. Klein? Is it that these two functions cannot both be given within the executive branch?

MR. KLEIN: Not -- not to the same department.

QUESTION: Well, what authority is there for that in our cases to say that there's some sort of internal separation of powers' principle within the executive branch? I never heard of that.

MR. KLEIN: Well, I think --

QUESTION: I mean, what authority is there in our cases for that?

MR. KLEIN: Let me say the only authority that I've uncovered I think are cases like Gagnon and Morrissey which say the same person in the -- in the executive cannot prosecute a parole violation as well as sit on it. That is it separates the adjudicatory and the prosecutorial function.

QUESTION: Yes, but we don't have any adjudicatory function here.

MR. KLEIN: I agree, but, Chief Justice Rehnquist, I think it's fair to say the reason there's no authority -- there's no contrary authority either. And that's because it -- Congress has never done this before.

Now, let me suggest to you why I think it's an important part of the delegation doctrine. I think we have to take a step back. I think we'd all agree defining crimes and prosecuting crimes, those are core separated functions. There's no dispute about that. That's why we have a Congress to begin with and an executive. Now, what's happened --

QUESTION: Except that Congress has always been able to delegate some of those functions to the executive.

MR. KLEIN: Absolutely.

QUESTION: Including filling in the blanks in criminal statutes.

MR. KLEIN: And -- and I agree. And the reason as I think you've pointed out in the American Petroleum cases as well as the Court, Chief Justice (inaudible), that's a product of practical necessity. In other words, look, we realize society is too complex and too technical for Congress to be making every single decision. So it delegates the power to fill in the blanks.

Now, having done that much as a product of practical necessity, I don't see why it follows that automatically the concern for two separated judgments is eliminated. And up until now it's always been respected. In other words --

QUESTION: But where in -- where in our cases or in what provision of the Constitution do you find a requirement of two separated judgments like you're talking about?

MR. KLEIN: I believe that's inherent in separation of powers. I think that that is -- I think that is the understructure. That's why we have a legislative department.

QUESTION: But you have no case supporting that.

MR. KLEIN: Well, the only case I say is Gagnon. I mean, why must there be a separation of the prosecutorial and adjudicatory functions? That's within the executive branch. If --

QUESTION: Well, you don't -- you don't attack the standard by which -- under which Congress delegated this power, do you?

MR. KLEIN: No, sir, I don't. I think the standard --

QUESTION: So, it's delegating executive powers, not legislative powers?

MR. KLEIN: I think --

QUESTION: Is that right?

MR. KLEIN: I don't agree with that.

QUESTION: Well, you --

MR. KLEIN: It can't.

QUESTION: Well, then you must be saying -- challenge the standard. The delegation -- you think the delegation is too vague or something.

MR. KLEIN: Justice White, if I can -- I don't want to -- I don't want to debate words -- but I think by definition Congress doesn't delegate executive functions. If it delegates, it's delegates legislative functions. That's its role. That's why I think the Court said, look, we need an intelligible standard. You can't tell the Attorney General go make criminal --

QUESTION: Well, if it's an intelligible standard, what authority does -- what kind of a power does the executive exercise when it -- when it responds to that delegation?

MR. KLEIN: I believe the executive exercises executive power. However, I think the question of whether its executive power in the sense that it's not law-making power is just not accurate. There's no question today that the Attorney General --

QUESTION: That's true. Agencies and the executive are constantly making regulations, the violation of which are criminal.

MR. KLEIN: Absolutely. And this Court has said time and again that's a product of practical necessity. We can't expect Congress to do the fine details. But why does it follow -- and the fact that there's no precedent I suggest isn't instructive because the issue is one of first impression -- why would it follow if you need executive expertise to define a standard that therefore you can merge would have to be two classically core-separated functions?

I mean, I can't understand -- when we start out we have a legislator and an executive. I would suggest if you go back to -- to Locke and to Montesquieu and so forth, the basic function in those two different departments is on the one hand, one makes the criminal law and the other enforces it. Now, we have said that --

QUESTION: And you say this is a separation of powers case? I thought you -- it isn't a due process case or something like that?

MR. KLEIN: I believe that -- I believe it's a separation of powers, but I think -- I think a part of separation of powers is due process. It's the process by which we govern ourselves. And I think that's what separation is. I don't think there's any substantive difference. In Gagnon the Court found it to be a due process violation.

QUESTION: You've cited, Mr. Klein, Gagnon a couple of times. What's the full name of that case? I haven't been able to run it down yet. Is it Gagnon against Scarpelli?

MR. KLEIN: Gagnon v. Scarpelli and [ILLEGIBLE WORD] v. Brewer, Your Honor.

QUESTION: And is it cited in your brief?

MR. KLEIN: Yes, it is. It's cited in our reply brief.

QUESTION: It's not cited in your opening brief I guess.

MR. KLEIN: No, it's not. It's cited in our reply brief.

QUESTION: Mr. Klein, the scheme adopted by Congress also provides for some permanent regulations of schedule 1 drugs; does it not?

MR. KLEIN: Yes, it does.

QUESTION: And the Attorney General plays a role in that as well?

MR. KLEIN: Yes, he does.

QUESTION: And can also prosecute for those. Now, are those -- do you make the same argument with respect to the permanent --

MR. KLEIN: No, I don't --

QUESTION: -- regulations?

MR. KLEIN: -- and I think there's a critical distinction.

QUESTION: And why not? It seems to me that undercuts the position you take with regard to the temporary regulations.

MR. KLEIN: I -- let me say what I think the critical distinction is, Justice O'Connor. And that is in the permanent statute, before the Attorney General can do anything, the Secretary of Health and Human Services has to approve the schedule. That is, the matter goes first to HHS. HHS makes a determination on the scientific factors and has absolute discretion to veto any proposed schedule. So you have two clear, separated judgments there.

QUESTION: And that gets back I suppose to the problem Justice Scalia asked you about. Both of these are executive functions, and normally I don't think we think of separation of powers as distinguishing between executive functions. It's all the executive branch whether one, two, or three different officials are involved.

MR. KLEIN: I agree that we normally don't think of it that way, but that's because I don't think this issue, which I think is unique in our history, has been raised before. I don't think there's any problem. For example, I wouldn't be here saying, you can give power to OSHA but not to EPA or to any other agency.

What I'm suggesting is there's an underlying core principle which I think we share, and that is criminal laws should be made by Congress or, to the extent that they have to be delegated as a matter of necessity, we should make sure there are two separated judgments. It's not a perfect separation.

QUESTION: But there aren't separate -- you either have to make it depend upon the executive, in which case the President has everything, or else your objection is that it's the same person that's doing both. And it isn't the same person doing both. It's the Administrator of DEA in one case and the United States Attorney in the other. Now, they both happen to be in the Justice Department. But it's the same thing if it's the Secretary of HHS and the Justice Department. They both happen to be in the executive branch, but they're different people.

MR. KLEIN: But, Justice Scalia, with respect, the statute says the Attorney General has the power. I'm tackling the statute. I understand he subdelegated it. We question that, too. The statute says the Attorney General, he can make this drug a crime.

QUESTION: And the Constitution says that the President can make the drug a crime, because any power that's delegated to the Attorney General belongs to the President. The President can tell the Attorney General to change it. Even if it's given to HHS, you have it technically in one person: the President of the United States. So if the image of it -- if it's somehow not the practicality of the matter, but the theory that troubles you, that theoretical problem exists in every case. It is theoretically the President of the United States who's making both decisions.

MR. KLEIN: But I think -- I think the theory is even -- is even questionable in the following sense. If the attorney -- if the President tells the Attorney General to make something a crime, I don't think the Attorney General is required to do that. I think the -- that's happened before where the President has instructed a Cabinet officer and the Cabinet officer has declined. So I think it's a structural matter. It's not the same --

QUESTION: And the Cabinet -- in Jackson's administration -- the Cabinet officer was removed by Andrew Jackson for refusing to remove the funds from the bank.

MR. KLEIN: That's still a different consideration, Mr. Chief Justice, than making something a crime. The President cannot make it a crime. The President can fire the Attorney General, presumably. The President can take other actions.

QUESTION: Well, and he can get a -- get a new Attorney General, just like Andrew Jackson did, who will make it a crime.

MR. KLEIN: Ultimately, I suppose, that's right, but I think that's a significant check.

QUESTION: Well --

MR. KLEIN: But I think to say that that is some -- somehow no different from having on the one hand Health and Human Services promulgating a criminal enforcement regulation, and on the other hand, the Attorney General being in power to enforce it, that seems to me to be a very big difference structurally.

QUESTION: Gagnon is not a separation of powers case at all.

MR. KLEIN: It's a due process case.

QUESTION: It's a due process case.

MR. KLEIN: I agree with that. But I -- I think that due process has an underlying core of separated powers.

QUESTION: Well, that really just sounds very, very mushy to me to say that due process has an underlying core of separation of powers. That's not just your melding together somehow about 200 years of constitutional law.

MR. KLEIN: But I -- I don't mean it to be mushy. I just think that both due process and separation of powers go to the way in which we govern ourselves vis-a-vis the individual and --

QUESTION: Well, so do all eight provisions of the -- of the first eight amendments. So does every provision in the Constitution.

MR. KLEIN: Okay. But I -- but I think from our point of view if this were -- I don't think there's any substantive difference if this were a due process violation than if it's a separation of powers. I think it's more properly categorized here as a separation of powers, because of what I view as two separate judgments.

Now, the second point in this statue which is equally novel, and I think equally troubling, is the elimination or curtailment of judicial review. Now, I want to say at this point we're starting from a provision where there is no check. That is, the two checks, even if they're not required, they're eliminated, and the Attorney General now has the power to make a crime and to enforce it. And the question is can Congress then eliminate or severely restrict judicial review.

There's some dispute about the language which I want to come to. But the Government agrees that this statute says there could be no pre-enforcement review. In other words, the Attorney General can take any drug and he can make it a crime -- or the DEA administrator -- for 18 months, during which period -- no matter whether that appears to be arbitrary, inconsistent with the intelligible principle that Congress set down or what have you.

During that 18 month period, no citizen can seek judicial review unless he's willing to first of all violate the statute. Second of all, subject himself to investigation and prosecution. And then third of all, take the risk that if his challenge turns out not to be correct, he can be convicted for 10 or more years for having violated it.

Now, we think that is a phenomenal amount of power in and of itself, even if you couldn't back it up with the enforcement power that the Attorney General can.

Let me give you an example. Suppose we had a reg at the Department of Transportation, and that reg said that the Secretary could determine for a period of 18 months which cars are unsafe and that should be done in accordance with the kind of criteria here, dangerous to the public and so forth. And if that statute said, for 18 months nobody could judicially challenge it except after prosecution, I think we would see clearly that that is a tremendous amount of power that's unwarranted, that shouldn't be granted, and that the fundamental structural check of judicial review should be preserved here.

QUESTION: Well, I don't understand why. I mean that happens every time Congress passes a law certainly. You -- you don't -- a criminal statute, you -- if you want to challenge it, you violate it. It may be unconstitutional, but you have to wait until you're prosecuted, and then you challenge it at that point.

MR. KLEIN: I don't think that's correct. I think there are two avenues that this Court has widely recognized. And one of course Congress provides for immediate judicial review of regulations in terms of the courts of appeals. And that's a customary practice. And second of all, this Court time and again has upheld district court challenges, pre-enforcement challenges to the constitutionality of a statute. You don't have to wait until you violate it.

QUESTION: Oh, you certainly do unless you've been -- unless you're affected by its mere existence -- unless your business is affected by its mere existence.

MR. KLEIN: Well, but that's the key distinction. Here if you're affected -- if I -- if I take -- if I am manufacturing this drug, and I am affected by this regulation, according to the Government, the only thing I can do is violate it and test it. If I am driving an automobile, under the hypothetical I gave you, Justice Scalia, and I'm driving that car and this regulation comes into effect and says you can no longer drive it. According to the Government, I've got to violate the law and take the risk of penalty. That's not happened before. In fact the only case that came close in the Abbott Labs in the Toilet case, Justice Harlan for the court read it exactly the opposite --

QUESTION: You're saying Abbott Labs is a constitutional decision?

MR. KLEIN: I say the only time it happened the statute was read the other way. That is Justice Harlan read the statute not to bar preliminary review. And the -- and the Justice Department -- I mean, the Attorney -- pardon me -- the Government gives no example --

QUESTION: I thought Abbott Labs was considered quite a novelty when it was pronounced, that you're entitled to pre-enforcement review of a regulation. I never thought that it was regarded as a constitutional decision, that you are absolutely entitled under the Constitution to pre-enforcement review of a regulation.

MR. KLEIN: There is -- it's not a constitutional decision, although I suggest that a year later in Oestereich, Justice Harlan at least suggested that pre-enforcement review is a constitutional necessity. But Abbott Laboratories, I think its novelty is what is the standard in terms of equitable discretion as to when a court will hear it. That seems very different from a congressional bar. Here Congress is saying, this is the law of the land -- for 18 months nobody can go into court and challenge it.

QUESTION: Well, Estep pretty much involved the same thing under the Selective Services Regulations, didn't it?

MR. KLEIN: But Estep the court read into the Selective Service Regulations a post-induction -- you don't have to be indicted. You go into the military --

QUESTION: Yes, but you couldn't challenge it before you were inducted.

MR. KLEIN: You could challenge it if you went into the military. In other words, you could --

QUESTION: Well, but --

MR. KLEIN: -- seek habeas corpus. But --

QUESTION: Being inducted means going into the military, I think.

MR. KLEIN: Yes, oh, I'm sorry. I thought you said indicted.

QUESTION: No, inducted.

(Laughter.)

MR. KLEIN: But you could there be -- you could challenge it prior to any indictment.

And the other thing I would say is those are adjudicatory determinations. They're not generic rules, which is exactly the point the Court relied on in interpreting Oestereich, or Justice Harlan relied on -- that in the one instance we're talking about thousands of individual classification decisions. Even there you can get judicial review. And in the other instance we're talking about a generic criminal rule.

QUESTION: Well, you can get judicial review here, too, of your -- of your -- you can get the thing reviewed in your criminal prosecution.

MR. KLEIN: Well, I think that's constitutionally inadequate for the reasons I've given. But let me suggest I don't think that's clear from the statute either, Mr. Chief Justice. That is, I think the Government is making that concession for the first time in this Court, because they can't defend the statute as it's written.

The statute as it's written -- the words are absolutely clear -- say that the scheduling order under the temporary statute is not subject to judicial review, period. It doesn't say anything about pre-enforcement or post-enforcement or timing or anything. That's what the statute says, and I think if you take those words for what they must mean, they mean that even after you're indicted and even after you're convicted, you cannot test whether or not this regulation complies with the underlying statute, with the standards. That's what it says and I think that's a blanket prohibition. And I don't think the Government should be allowed to re-write the statute to say that.

QUESTION: Well, the court of appeals read it that way, didn't it?

MR. KLEIN: The court of appeals even read it more curiously, Justice White, that if it didn't --

QUESTION: Well, I thought it said that they anticipated that they would allow -- they would allow judicial review in the course of a prosecution.

MR. KLEIN: They said we don't foreclose that. They didn't say they'd allow it. And second of all, I think frankly they are misreading the statute, too.

QUESTION: Well, they obviously didn't read the statute the way you did if they didn't foreclose it.

MR. KLEIN: Well, I -- I think they didn't read it the way I did. The district court read it exactly the way I did. The court of appeals --

QUESTION: Well, that's the judgment we're reviewing.

MR. KLEIN: -- said -- that's correct. But I think that the statute, Justice White, speaks for itself. That is, I don't think there's a question of law. I don't think the court of appeals reading is entitled to any deference. And as I say, the words, it seems to me, are absolutely clear on this issue. And then the Government says, well, those words mean you can't have pre-enforcement review, you can have post-prosecution review.

Well, do they get that? You know, up until now, with Congress' limited judicial review, it virtually always limits it to pre-prosecution review. And there's a reason for that -- that is, cases like Yakus or Adamo Wrecking or so forth. Congress says, look, you're not going to be able to challenge this into prosecution because we want to get the standards settled. There's a sort of finality interest that Congress has.

For the first time in this statute, it's basically saying, according to the Government without the words, you can challenge it only in an -- after you're indicted in a criminal prosecution. And we don't think the words bear that.

The final point I'd like to make is simply with respect to subdelegation and the issue of assigning this to the DEA. Our argument is just a straightforward one, and that is the power at issue here is certainly unique. Even if the Court should find that unconstitutional, it's unique.

And we think that relying on subdelegation statutes that go back 10, 15 years before this power was ever contemplated, that reliance on that is really unwarranted here, that a contemporary expression with this kind of power of the authority to subdelegate. After all, a subdelegation clause provides the power to give this to any, quote, "employee" of the Justice Department. And we think, as the Tenth Circuit said in the Widdowson case, the analogue for this one, that that's just too broad a power to allow under a general delegation.

QUESTION: Mr. Klein, may I ask you to comment on a problem that I haven't quite been able to figure out. You've described this as a case in which the Attorney General is given the power to define a new crime, in effect.

MR. KLEIN: Yes, sir.

QUESTION: But as I understand the Food and Drug Act, if this were a new drug, and it's not approved by the Food and Drug Administration, it is already a crime to distribute it. So that really what he's able to do is not define a new crime but [ILLEGIBLE WORDS] the penalties for an existing crime.

MR. KLEIN: I think that's not accurate. Let me explain why if I might, Justice Stevens. And that is to say, under the Food and Drug Act, if I produce this drug in my house, which is what my client was convicted of, that's not a crime. He was convicted of manufacturing and conspiracy to manufacture. Under the Food and Drug Act, if I had sold this drug in interstate commerce, that would be a crime. But the act for which my client was convicted would not have been a crime, but for the Attorney General's -- or the DEA's determination.

QUESTION: I see, because that only -- the Food and Drug prohibition only attaches the act of selling --

MR. KLEIN: In interstate commerce.

QUESTION: -- introducing in the -- into commerce.

MR. KLEIN: That's correct, sir. And that would be true as well for possession, not just manufacture, but possession as well.

I'd like to reserve the balance, Mr. Chief Justice.

QUESTION: Very well, Mr. Klein.

Mr. Minear, we'll hear from you.

ORAL ARGUMENT OF JEFFREY P. MINEAR ON BEHALF OF THE RESPONDENT

MR. MINEAR: Mr. Chief Justice, and may it please the Court:

I'd like to begin with clarifying the point that you just discussed with Mr. Klein, Justice Stevens. In fact, this -- this activity would be illegal under section 360 for the Food, Drug and Cosmetic Act, because that requires any manufacturer to register with the FDA before engaging in any manufacture. So in fact, there would be a violation. This would be a violation of the law in any event.

QUESTION: Well, then if that's true, let me ask you this further question. Part of the Government's rationale for the whole program is the emergency that the -- there must be prompt response to a new drug of this kind. I'm a little puzzled as to what was the emergency if it was already illegal?

MR. MINEAR: Well, part of the problem here -- it's perhaps best, Your Honor, to explain exactly how these situations arise. What normally happens is a drug enforcement investigation leads to the seizure of a drug laboratory. Upon examination of the materials in the drug laboratory, they find that the person is selling particular drugs. That person might be selling these drugs as amphetamines or speed or some other drugs that are controlled. In fact, a further review reveals that these drugs are in fact a -- they mimic the dangerous effects of that drug, that they are not in fact controlled.

At that point, the DEA makes a determination whether they should seek to further control those drugs, to place them on the list. And at that -- in that manner be able to apply the full force of the criminal law against this --

QUESTION: In other words, it's really a matter of just increasing the penalties for what is already illegal.

MR. MINEAR: Largely that is what the effect of this is.

QUESTION: And that's the emergency, that you've got to have the stiffer penalty immediately.

MR. MINEAR: Yes, because otherwise the misdemeanor penalty is simply not sufficient material for --

QUESTION: Well, you're in jail -- you can go to jail for a year -- isn't it that 1 year in jail is the punishment?

MR. MINEAR: Yes, that's right. That's simply not enough to deter this type of activity, which can be very, very remunerative in terms of the amount of money that can be made on those types of sales.

Congress enacted section 201(h) of the Controlled Substances Act to deal with the serious health problem. Illicit drug dealers attempt to avoid laws prohibiting the Controlled Substances Act or to attempt to avoid laws prohibiting the sale of controlled substances by producing and selling drugs such as euphoria involved in this case. It mimics the dangerous effects of a controlled substance, but is not listed as such.

Section 201(h) authorizes the Attorney General to take prompt action to protect the public with the dangers associated with the misdirected creativity of these underground chemists. If the Attorney General finds that the unlisted drug poses an imminent hazard to the public safety, it has no approved medical use, he may list that drug as a schedule 1 controlled substance for as long as 18 months while he completes the permanent listing process.

Now, petitioners acknowledge that Congress has authority to protect the public health through some mechanism allowing the executive branch to list eight dangerous drugs on an emergency basis. They argue, however, that Congress' use of the Attorney General to effect that result is an unlawful delegation of legislative power.

Petitioners concede that section 201(h) lays down intelligible principles that guide the Attorney General's exercise of emergency listing discretion. That concession, we submit, should resolve the delegation issue. This Court has repeatedly held that Congress does not delegate legislative power as the Constitution uses that term. Or it gives an executive branch official discretion to define unlawful conduct and also lays down guidelines that channel the executive branch officials exercise of that discretion.

The reason for this is clear. Congress can enact laws whose application depends on the satisfaction of certain conditions, and then give the executive branch official the task of determining whether those conditions have been satisfied. The executive branch official does not in that situation exercise legislative power. He's not making law subject only to constitutional limits in electoral accountability. Rather he's executing Congress' will. The task of determining whether a law should apply to particular facts is simply one aspect of executing that law.

Congress must of course give the executive branch intelligible direction to ensure the executive is executing Congress' will rather than exercising de facto legislative power.

QUESTION: You're saying there's no such thing as a constitutional delegation?

MR. MINEAR: That is -- I think that is right.

QUESTION: The term delegation is really a -- a misusage. There's either a delegation in which case it's unconstitutional or there's no delegation.

MR. MINEAR: I believe that's absolutely right, Your Honor.

QUESTION: Now, as you have heard, petitioners concede that section 201(h) amply satisfies the intelligible principle test. They nevertheless argue that section 201(h) is unconstitutional delegation of legislative power, because Congress has given the Attorney General rather than some other executive branch official the power to list dangerous drugs.

QUESTION: You would make that usage more common if you wouldn't refer to it as an unconstitutional delegation of legislative power. If you just said it's a delegation of legislative power.

MR. MINEAR: Certainly.

QUESTION: And therefore unconstitutional. When you say it the other way, people are inclined to refer to constitutional delegations of legislative power.

MR. MINEAR: Yes, Your Honor.

QUESTION: Has the Court's opinions been as pristine as Justice Scalia would like?

MR. MINEAR: I'm afraid that it's not.

QUESTION: So you have -- you're in good company at least.

MR. MINEAR: As this Court has repeatedly emphasized, the Constitution divides government power into three co-equal branches of Government. It does not dictate how Congress might assign responsibilities within the executive branch. Rather Congress' broad authority under the necessary and proper clause to select the President or one of his subordinates to perform an executive function. There's no constitutional requirement that Congress vulcanize the executive branch's regulatory and prosecutory functions. In this instance, Congress gave the Attorney General responsibility for temporarily listing dangerous drugs, because it determined that he's best situated to respond promptly and effectively to the public health threat.

Certainly Congress entitled -- is entitled to make that determination. As I explained before, these enforcement -- the listing is usually preceded by enforcement action that leads to the discovery of these drugs. Now, Congress' decision to give the Attorney General both regulatory and prosecutive functions is not, as petitioners suggested in their opening brief, entirely unprecedented.

Congress has given the Attorney General criminal enforcement power in all three of the basic areas where the Attorney General has regulatory responsibilities. In the case of controlled substances, the Attorney General plays the principal role in the permanent listing decision -- even in the case of drugs that have medical uses.

In the case of prisons, the Attorney General has authority to regulate the introduction of anything whatsoever into prison and to punish violations, including violations by people who are not prisoners and not subject to the Attorney General's custodial responsibilities. Now, the Attorney General has exercised that authority since at least 1948, and it has withstood repeated delegation challenges.

In the case of immigration, it's a crime to bring aliens into this country at locations other than designated ports of entry. Now, the Attorney General has authority to designate ports of entry under 8 U.S.C. 1229. He has delegated that authority to the Commissioner of the INS.

What we see here really is that in any case where the Attorney General has regulatory responsibilities, he also has prosecutorial responsibilities as well. Indeed, what is impressed in here is petitioners' extraordinary approach to what constitutes an unlawful delegation. Under petitioners' view, the question would turn not on the proper relationship between the Congress and the executive branch, but rather on whether a given executive branch official, in this case the Attorney General, is the appropriate person to administer prisons, to determine lawful ports of entry for aliens, or to designate dangerous drugs.

Petitioners also contend that section 201(h) violates separation of powers, because the section does not provide for judicial review of the Attorney General's temporary listing decisions. That argument however is incorrect. Section 507, the Controlled Substances Act, contains special provisions for judicial review which may be invoked upon permanent listing of the substance. Section 201(h)(6) prevents and individual from invoking those provisions until completion of the permanent listing decision. But even then it does not prevent an individual who is prosecuted in the interim from obtaining judicial oversight of the Attorney General's action in the enforcement proceeding.

In this case, petitioners challenged only the constitutionality of section 201(h) --

QUESTION: May I ask about your theory of how you read the statute? How would the defendant go about challenging? Would he file a motion -- a pretrial motion, or during the course of the trial --

MR. MINEAR: That is correct, Your Honor. You would file a pretrial motion to dismiss the indictment. In this case, they filed a pretrial motion to dismiss the indictment on the ground that the section 201(h) was unconstitutional.

QUESTION: And would they be entitled to put in evidence in support of that motion? Is that your view?

MR. MINEAR: Yes, they would.

QUESTION: They could put the whole record in, get into arguments about the procedures that were followed in the -- by the Attorney General and the likely kind of thing you might ** --

MR. MINEAR: Excuse me, I didn't mean to interrupt.

QUESTION: It occurs to me that perhaps you're inviting some protracted proceedings in advance of trial in a lot of criminal cases in these things.

MR. MINEAR: I think not, Your Honor, because I think what would happen in these cases is that we would rely on the administrative record that was compiled for the emergency listing. The review of that would be a question of whether the listing of this drug was arbitrary and capricious. We'd apply the same APA standard in that case. We are quite confident that our record is such that we would have little difficulty in winning this -- these -- this --

QUESTION: And if the judge should dismiss an indictment, I gather you can appeal that, can't you?

MR. MINEAR: Yes, we would appeal.

QUESTION: You can appeal an order dismissing the indictment.

MR. MINEAR: Now, as I said in this case the petitioners could have challenged the listing of euphoria in this particular case, but they chose simply not to do that. They say --

QUESTION: Why can they do that in light of the words in the statute?

MR. MINEAR: Our construction of the statute is as follows. It precludes -- section 201(h)(6) says -- states that there shall be no judicial review of any order of the Attorney General. That reference to judicial review we believe applies to the specific judicial review provisions of the act containing section 507. In other words, it prevents a party from seeking review under section 507 of the Controlled Substances Act. But it does not prevent a party from raising a challenge as a defense to their prosecution.

Now, it might be -- you find in cases that raising the challenge in the enforcement proceeding is sometimes referred to as judicial review. But normally judicial review is conceived of as an action that's initiated to challenge agency action rather than a defense to a prosecution.

QUESTION: You're saying it really means it's not subject to judicial review under the provisions of this statute.

MR. MINEAR: It says there shall be no judicial review.

QUESTION: Is not subject to judicial review -- an order issued under paragraph 1 is not subject to judicial review.

MR. MINEAR: That is correct, Your Honor.

QUESTION: And you say except in a criminal proceeding.

MR. MINEAR: Yes, we would say that in a case of criminal proceeding it's a different situation where you're allowed to raise that as a defense.

QUESTION: Where is judicial review provided for?

MR. MINEAR: It is section 507, which is --

QUESTION: What's that?

MR. MINEAR: -- 21 U.S.C. 877 is the statutory --

QUESTION: That's not -- that's not in your brief.

MR. MINEAR: No, I believe it is summarized in a footnote in our brief, however.

QUESTION: 21 U.S.C.?

MR. MINEAR: 21 U.S.C. 877. I'm afraid I'm not able to find it.

QUESTION: I'll get it. It's all right.

MR. MINEAR: Now, there's nothing unusual in challenging agency action in a criminal enforcement proceeding. And indeed, prior to the enactment of the Administrative Procedure Act, one could often challenge administrative determination only in the course of an administrative -- or in the course of a criminal prosecution. The bridge cases that we cite, cases like Union Bridge and the Monongahela Bridge accompanied. Both involve that situation where there's a administrative determination that was challenged in the criminal enforcement action.

QUESTION: Well, if somebody is prosecuted for violating a regulation, the violation of which is made a crime, I would suppose he could plainly defend the -- his prosecution on the -- on the basis that regulation is inconsistent with the statute.

MR. MINEAR: Yes, and in fact, the APA recognizes that. And section 703 of the APA states that unless the specific provision provided precludes that type of challenge, it is permissible.

QUESTION: Yes, but of course the Yakus case holds that if there is a provision that precludes judicial review, he cannot do that.

MR. MINEAR: That's right. And if in fact this was -- if section 201(h)(6) were interpreted to preclude and it review -- even in an enforcement proceeding -- then this case would be very much like Yakus.

Now, in Yakus --

QUESTION: The difference would be that there they at least allow judicial review for a stated period of time.

MR. MINEAR: Yes, at some point after the criminal enforcement proceeding, as in here. If you look to Yakus at -- I believe it would be at 321 U.S., page 436, there's a discussion of this. The same discussion is made in Bowles v. Willingham, which is -- also appears in that volume of U.S. reports.

QUESTION: Do you agree that this statute would be unconstitutional if you read section 6 to preclude judicial review entirely?

MR. MINEAR: No, no. This would not be unconstitutional.

QUESTION: It wouldn't.

MR. MINEAR: It would not be unconstitutional in this --

QUESTION: Well, then why should I read it that say?

MR. MINEAR: We believe this is the best reading of the statute in light of the guidance this Court has given it in interpreting judicial review provisions. This Court is hesitant to conclude that judicial review has been completely precluded.

QUESTION: It doesn't say here under it. It just says no judicial review.

MR. MINEAR: That's correct, and if the Court wished to read the statute like this --

QUESTION: I mean, if you told me -- you know -- there's a real constitutional problem otherwise, I -- you know -- I'd stretch a point. And I'd say in order to avoid unconstitutionality, you interpret it that way. But you're telling me it wouldn't be -- it would be perfectly constitutional.

MR. MINEAR: We believe it would still be constitutional, and for this reason. The activity that these parties are engaged in is illegal already. There is no real due process limitation, or no liberty interest that's being -- that needs to be protected here under the due process --

QUESTION: As applied you say at least it's constitutional.

MR. MINEAR: Yes.

QUESTION: It won't always be the case that a drug he defines is necessarily already a crime under the Food and Drug Act.

MR. MINEAR: Well, I think we can presume that it -- that we're entitled to that presumption in determining the constitution -- constitutionality of the statute that they -- that he would act properly under the statute.

Now, in fact, in Yakus, I should point out --

QUESTION: Let me just go back for a second.

MR. MINEAR: Yes.

QUESTION: What is your authority for the proposition that if you read the statute the way your opponent does, it clearly would be constitutional?

MR. MINEAR: First would be the -- the Yakus.

QUESTION: The Yakus is the closest you get.

MR. MINEAR: The Yakus is the closest situation.

QUESTION: Right.

MR. MINEAR: It's worth pointing out though, however, that in some cases there certainly can be delegations of executive power for which there is no judicial review. The APA recognizes that. Some cases have in fact recognized that as well.

QUESTION: I understand, but your position is just as novel as your opponents in this particular issue.

MR. MINEAR: No, I do -- with all respect, Your Honor, I think it is -- I think that we have -- certainly have much stronger case support than they do.

QUESTION: I'm not saying that, but you don't have the case on the nose and neither does he.

MR. MINEAR: That is correct.

In sum, petitioners had more than ample opportunity to obtain judicial review of the Government's decision to list euphoria as a schedule 1 controlled substance. Their failure to challenge the Government's decision, either after completion of the administrative proceeding or in the enforcement proceeding, simply underscores the lawfulness of the Government's action.

I'd like to respond to a couple of the points that were raised in the opening argument. One, petitioners note that there have been suggestions in the executive branch that there should be some division of executive and prosecutive and regulatory powers. We've made those suggestions as a policy matter and not as a constitutional matter. This is a constitutional issue that's posed here.

With respect to Gagnon v. Scarpelli, I think the more -- the more compelling precedent would be Withrow v. Larkin. In that case, this Court noted that, as a general matter, there is not facially violative of due process to combine both a prosecutorial and an adjudicative function. It indicated it might be unconstitutional in certain factual situations and explained cases like Gagnon on that basis.

Here we do not have a combination of the prosecution in adjudicatory function. Instead, it's simply the regulatory and prosecutive function instead.

Also, I'd like to reemphasize the point that was made in argument that the petitioners' reliance on the Abbott Lab case is really misplaced here. That was a statutory -- in case of statutory interpretation. The due process principles that were applicable in this area were set forth in the Ewing case that was decided before that time.

And then finally I think it's -- I should mention the subdelegation issue. Petitioners also contend that the Attorney General lacks statutory authority to delegate his section 201 responsibilities to the Administrator of the Drug Enforcement Agency. Congress, however, is authorized that subdelegation in two separate statutes.

As we explain in our brief, there is no indication in either of those statutes that Congress intended to exempt section 201(h) from subdelegation. The Attorney General accordingly has ample statutory authority to delegate his temporary listing responsibilities to the Administrator of DEA.

QUESTION: May I ask on that question, how far down the line could he delegate? If you read the statute literally, could he give the power to an assistant United States attorney or to a secretary or to a research assistant or somebody like that?

MR. MINEAR: We -- we think under Buckley v. Valeo this would have to be exercised by an officer of the United States. Now the Administrator of the DEA is obviously an officer of the United States and that would dispose of the --

QUESTION: You say it would have to be an officer of the United States? The statute doesn't say that.

MR. MINEAR: No, the statute does not say that. But again the delegation provision here is a general delegation provision covering the statute at large.

QUESTION: I understand.

MR. MINEAR: So there certainly could be responsibilities that could be delegated to employees.

QUESTION: But you think there's an implied limit on what the statute seems to say on its face?

MR. MINEAR: We think there might be a constitutional limit on that, yes.

QUESTION: Is the theory of the Federal Enclaves Act, in which the Federal Government for its properties incorporates the existing criminal law of the State, has that ever been challenged under delegation principles?

MR. MINEAR: I'm not aware of any challenge to that. I would also point out that in -- for instance in 36 C.F.R., the Department of Interior has created an entire criminal code for the national parks, where various -- all sorts of infractions violate the law. And there's never been any challenge to my knowledge to that.

QUESTION: Could the Congress delegate to the Attorney General the authority to declare any common law crime applicable on any Federal territory?

MR. MINEAR: I think that that would depend on a question of whether there's an intelligible principle that has been stated there.

QUESTION: If it's necessary for the public safety?

MR. MINEAR: I think that we might -- well, the broader the delegation I think the more insistent we are that there be a clear -- a clear indication of an intelligible principle. Here the intelligible principles are very precise. There's no challenge to them whatsoever in this case. However, in some -- in the extreme case I think we can demand more from Congress in terms of intelligible principles the broader the -- the delegation authority might be.

If there are no further questions -- thank you.

QUESTION: Very well, Mr. Minear.

Mr. Klein, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF JOEL I. KLEIN ON BEHALF OF THE PETITIONERS

MR. KLEIN: Yes, very briefly, Mr. Chief Justice. A couple of points. First of all, on this issue of whether prior behavior was already criminal, Justice Stevens, to begin with even under the Government's view, if I've registered, which lots of people do, then it is no crime for me to manufacture this drug in my home. But once the Attorney General passes this regulation, it then becomes a crime. So something that was noncriminal is now a crime. By the same token, I could possess this drug. There is no requirement there. And that becomes a crime once it's scheduled.

The second point I want to make is on judicial review. And the Justice Department says what the statute really refers to is 877, which is the general judicial review statute. That statute only says there shall be judicial review in the courts of appeals. It doesn't say anything at all about judicial review in district courts. So the -- the Government's argument doesn't even fit its own theory.

In other words, if all that Congress meant to do was take out 877, which the words don't support. But if that's all that it meant to do, there still could be pre-enforcement actions, injunctive and declaratory, in the district courts, because this statute doesn't mention it and that is a common and typical way. So I suggest to you that the Government's forcing the words doesn't even go with its theory.

Finally, the issue of whether it would be constitutional, Justice Scalia, to eliminate judicial review here altogether seems to me at least the Court has said twice that it would be impermissible. That is in Skinner v. Mid-America, which is a delegation case. I realize -- the terminology is the Court's not mine. In that case, the Court said that a delegation of power was valid so long as, quote, "a court could ascertain whether the will of Congress has been obeyed." That point was made as well in Chada.

So I suggest to you if this was a blanket preclusion, that in fact it would not comport with these -- with this Court's principles and that's exactly why the Government is trying to fiddle with the language.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Klein.

The case is submitted.

(Whereupon, at 10:55 a.m., the case in the above-entitled matter was submitted.)