author: Justice Stevens

text:
    McCARTHY v. BRONSON, WARDEN, et al.
    No. 90-5635.
    Argued March 25, 1991
    Decided May 20, 1991

      Stevens, J., delivered the opinion for a unanimous Court.

      Christopher D. Cerf argued the cause for petitioner. With him on the briefs was Joel I. Klein.

      Richard Blumenthal, Attorney General of Connecticut, argued the cause for respondents. With him on the brief were Aaron S. Bayer, Deputy Attorney General, and Steven R. Strom, Assistant Attorney General.
   Justice Stevens

delivered the opinion of the Court.

In 1976, Congress authorized the noneonsensual referral to magistrates for a hearing and recommended findings “of prisoner petitions challenging conditions of confinement.” 28 U. S. C. § 636(b)(1)(B). We granted certiorari to decide whether that authorization includes cases alleging a specific episode of unconstitutional conduct by prison administrators or encompasses only challenges to ongoing prison conditions. 498 U. S. 1011 (1990).

In this case, petitioner brought suit against various prison officials alleging that, in violation of his constitutional rights, they used excessive force when they transferred him from one cell to another on July 13, 1982. App. 11-24. Petitioner waived a jury trial and initially consented to have a magistrate try the entire case pursuant to 28 U. S. C. § 636(c)(1). See App. 7-8, 28-29. On the first day of trial, however, petitioner sought to withdraw his consent. Petitioner was permitted to withdraw his consent, but the Magistrate ruled that he was nonetheless authorized to conduct an evidentiary hearing and to submit proposed findings of fact and a recommended disposition to the District Court. See id., at 30-31.

After a hearing, the Magistrate recommended detailed findings and a judgment for defendants. Id., at 33-49. The District Court accepted the Magistrate’s recommendation and overruled petitioner’s objection to the Magistrate’s role. Id., at 54-55. The Court of Appeals affirmed the District Court’s determination that the Magistrate was authorized by § 636(b)(1)(B) to hold the hearing and to recommend findings. 906 F. 2d 835 (CA2 1990).

Petitioner contends that § 636(b)(1)(B) permits nonconsen-sual referrals to a magistrate only when a prisoner challenges ongoing prison conditions. Suits alleging that administrators acted unconstitutionally in an isolated incident, petitioner suggests, are not properly classified as “petitions challenging conditions of confinement.” § 636(b)(1)(B).

Petitioner advances two reasonable arguments for his construction of the statute. First, he maintains that the ordinary meaning of the words “conditions of confinement” includes continuous conditions and excludes isolated incidents. Second, he suggests that because a prisoner is constitutionally entitled to a jury trial in a damages action arising out of a specific episode of misconduct, it seems unlikely that Congress would authorize a nonconsensual reference to a magistrate in such a case. In our judgment, however, these arguments, although not without force, are overcome by other considerations.

We do not quarrel with petitioner’s claim that the most natural reading of the phrase “challenging conditions of confinement,” when viewed in isolation,' would not include suits seeking relief from isolated episodes of unconstitutional conduct. However, statutory language must always be read in its proper context. “In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988). See also Crandon v. United States, 494 U. S. 152, 158 (1990) (“In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy”).

The text of the statute does not define the term “conditions of confinement” or contain any language suggesting that prisoner petitions should be divided into subcategories. On the contrary, when the relevant section is read in its entirety, it suggests that Congress intended to authorize the nonconsen-sual reference of all prisoner petitions to a magistrate. In pertinent part, the statute provides:

“(b)(1) Notwithstanding any provision of law to the contrary—
“(B) a judge may . . . designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, ... of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.” § 636(b)(1)(B) (emphasis added).

This description suggests Congress intended to include in their entirety the two primary categories of suits brought by prisoners — applications for habeas corpus relief pursuant to 28 U. S. C. §§2254 and 2255 and actions for monetary or in-junctive relief under 42 U. S. C. § 1983.

Petitioner attempts to bolster his plain meaning argument with the suggestion that this Court has interpreted the words “conditions of confinement” to include the limitation that he suggests. We certainly presume that in 1976, when Congress selected this language, our elected representatives were familiar with our recently announced opinions concerning prisoner petitions. See Cannon v. University of Chicago, 441 U. S. 677, 696-697 (1979). However, the possibility that Congress was influenced in its choice of language by our opinions cuts against, rather than in favor of, the statutory reading advanced by petitioner.

All but one of the cases that petitioner claims support his reading were decided well after the enactment of § 636(b) (1)(B). The sole case identified by petitioner that predates the statute’s enactment did not even use the phrase “conditions of confinement” much less expound a narrow definition of it. See Procunier v. Martinez, 416 U. S. 396 (1974).

Just three years before the statute was drafted, however, our opinion in Preiser v. Rodriguez, 411 U. S. 475 (1973), had described two broad categories of prisoner petitions: (1) those challenging the fact or duration of confinement itself; and (2) those challenging the conditions of confinement. The statu-t.ory language from ,§ 636(b)(1)(B) that we emphasized above describes these same two categories. Significantly, our description in Preiser of the latter category unambiguously embraced the kind of single episode cases that petitioner’s construction would exclude. We wrote:

“The respondents place a great deal of reliance on our recent decisions upholding the right of state prisoners to bring federal civil rights actions to challenge the conditions of their confinement. Cooper v. Pate, 378 U. S. 546 (1964); Houghton v. Shafer, 392 U. S. 639 (1968); Wilwording v. Swenson, 404 U. S. 249 (1971); Haines v. Kerner, 404 U. S. 519 (1972). But none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate release or a speedier release from that confinement — the heart of habeas corpus. In Cooper, the prisoner alleged that, solely because of his religious beliefs, he had been denied permission to purchase certain religious publications and had been denied other privileges enjoyed by his fellow prisoners. In Houghton, the prisoner’s contention was that prison authorities had violated the Constitution by confiscating legal materials which he had acquired for pursuing his appeal, but which, in violation of prison rules, had been found in the possession of another prisoner. In Wilwording, the prisoners’ complaints related solely to their living conditions and disciplinary measures while confined in maximum security. And in Haines, the prisoner claimed that prison officials had acted unconstitutionally by placing him in solitary confinement as a disciplinary measure, and he sought damages for claimed physical injuries sustained while so segregated. It is clear, then, that in all those cases, the prisoners’ claims related solely to the States’ alleged unconstitutional treatment of them while in confinement. None sought, as did the respondents here, to challenge the very fact or duration of the confinement itself. Those cases, therefore, merely establish that a §1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. ” Id., at 498-499.

The denial of religious publications in Cooper v. Pate, 378 U. S. 546 (1964), the confiscation of legal materials in Houghton v. Shafer, 392 U. S. 639 (1968), and, most definitely, the placement of the prisoner in solitary confinement in Haines v. Kerner, 404 U. S. 519 (1972), were all challenges to specific instances of unconstitutional conduct, and the Preiser Court described them as challenges to “conditions of confinement.”

Petitioner also claims that his narrow reading is supported by the fact that, in other legislation, Congress used the term “conditions of confinement” to mean ongoing situations. However, the fact that Congress may have used the term “conditions of confinement” in a different sense in legislation having a different purpose cannot control our interpretation of the language in this Act that so clearly parallels our Preiser opinion.

The broader reading we adopt also comports with the policy behind the Act. The central purpose of the 1976 amendment to the Magistrate’s Act was to authorize greater use of magistrates to assist federal judges “in handling an ever-increasing caseload.” S. Rep. No. 94-625, p. 2 (1976). The adoption of the definition of “conditions of confinement” that we had used in Preiser is consistent with this purpose because it will allow referral of a broader category of cases. Our reading also furthers the policy of the Act because its simplicity avoids the litigation that otherwise would inevitably arise in trying to identify the precise contours of petitioner’s suggested exception for single episode cases.

Petitioner’s definition would generate additional work for the district courts because the distinction between cases challenging ongoing conditions and those challenging specific acts of alleged misconduct will often be difficult to identify. The complaint filed by petitioner in this case illustrates the point. On the one hand, he alleged that the defendants injured him by making improper use of a chemical agent “commonly referred to by correctional sadists as ‘Big Red,’” App. 14, but on the other hand, he also complained of the absence of prison regulations governing the use of tear gas, and sought in-junctive relief as well as damages. Thus, this complaint, like many other prisoner petitions, could fairly be characterized as challenging both ongoing practices and a specific act of alleged misconduct.

We are not persuaded to alter our reading of the statute by petitioner’s argument based on the constitutional right to a jury trial. First, petitioner’s statutory reading would not eliminate the potential constitutional difficulty that he identifies. Petitioner concedes that, in some actions that would be considered “petitions challenging conditions of confinement” under his definition, the prisoner would nonetheless have a constitutional right to a jury trial that would render noncon-sensual referral constitutionally suspect. See Reply Brief for Petitioner 5, n. 3. Second, and, more important, the statute properly interpreted is not constitutionally infirm. No constitutional question arises in cases like this one, in which the plaintiff has waived the right to a jury trial. And, in cases in which the jury right exists and is not waived, the lower courts, guided by the principle of constitutional avoidance, have consistently held that the statute does not authorize reference to a magistrate. See, e. g., Hall v. Sharpe, 812 F. 2d 644, 647-649 (CA11 1987); Archie v. Christian, 808 F. 2d 1132, 1136-1137 (CA5 1987) (en banc); Wimmer v. Cook, 774 F. 2d 68, 73-74 (CA4 1985).

The judgment of the Court of Appeals is affirmed.

It is so ordered.

       Title 28 U. S. C. § 636(b)(1)(B) provides in relevant part:
      “(b)(1) Notwithstanding any provision of law to the contrary—
      “(B) a judge may . . . designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court,... of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. ”

       Title 28 U. S. C. § 636(e)(1) provides in relevant part:
      “Notwithstanding any provision of law to the contrary—
      “(1) Upon the consent of the parties, a full-time United States magistrate or a part-time United States magistrate who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves."

      See 18 U. S. C. § 4013(a)(4) (authorizing Attorney General to enter into contracts “to establish acceptable conditions of confinement” in state facilities housing federal detainees); 42 U. S. C. §§1997a(a), 1997c(a)(1) (authorizing Attorney General to initiate, or intervene in, injunctive actions challenging “egregious or flagrant conditions” in state prisons); 42 U. S. C. §§ 37C9a(b), 3769b(a)(1) (requiring state governments to develop a “plan for . . . improving conditions of confinement” as a precondition to receiving federal funds to “reliev[e] overcrowding [and] substandard conditions”).

       “27. There is no standard reporting form for any chemical weapon other than mace used at [the Connecticut Correctional Institute at Somers, Connecticut (CCI-Somers)].” App. 15.
      “30. There were no written directives governing the use of chemical weapons other than mace at the time this incident occurred.” Id., at 16.
      “32. Written policy and procedure of the Department of Corrections and the Institution did not provide for the use of the tear gas duster." Id., at 17.
      “42. At the time of the incident, neither the Administrative Directives nor the CCI-Somers Operational Directives contained a use of force doctrine. Neither addressed the use of the tear gas duster or other chemical weapons, except mace.” Id., at 18.

       The complaint included a prayer for an injunction asking that defendants “immediately formulate and adopt rigid Directives restricting the use of Tear Gas and the weapon known as the Tear Gas Duster to riot situations involving multiple inmates or to situations where there exist barriers obstructing the use of mace[;] immediately formulate and adopt rigid Directives requiring the immediate post-incident treatment of inmates sprayed with tear gas including adequate medical treatment and shower facilities.” 7d.,at23.


source: Caselaw Access Project

author: Justice O’Connor Justice Blackmun, Justice Stevens,

license: Public Domain

text:
    MICHIGAN v. LUCAS
    No. 90-149.
    Argued March 26, 1991
    Decided May 20, 1991
    O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, Kennedy, and Souter, JJ., joined. Black-mun, J., filed an opinion concurring in the judgment, post, p. 153. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 155.

      Don W. Atkins argued the cause for petitioner. With him on the brief were John D. O’Hair and Timothy A. Baughman.

      Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Mueller, Deputy Solicitor General Bryson, Michael R. Dreeben, and Sean Connelly.

      Mark H. Magidson argued the cause for respondent.

         Arthur J. Taruow filed a brief for Criminal Defense Attorneys of Michigan as amicus curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court.

Because Nolan Lucas failed to give statutorily required notice of his intention to present evidence of an alleged rape victim’s past sexual conduct, a Michigan trial court refused to let him present the evidence at trial. The Michigan Court of Appeals reversed, adopting a per se rule that preclusion of evidence of a rape victim’s prior sexual relationship with a criminal defendant violates the Sixth Amendment. We consider the propriety of this per se rule.

I — I

Like most States, Michigan has a rape-shield statute designed to protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior. See Mich. Comp. Laws §750.520j (1979). This statute prohibits a criminal defendant from introducing at trial evidence of an alleged rape victim’s past sexual conduct, subject to two exceptions. One of the exceptions is relevant here. It permits a defendant to introduce evidence of his own past sexual conduct with the victim, provided that he follows certain procedures. Specifically, a defendant who plans to present such evidence must file a written motion and an offer of proof “within 10 days” after he is arraigned. The trial court may hold “an in camera hearing to determine whether the proposed evidence is admissible” — i. e., whether the evidence is material and not more prejudicial than probative.

Lucas was charged with two counts of criminal sexual conduct. The State maintained that Lucas had used a knife to force his ex-girlfriend into his apartment, where he beat her and forced her to engage in several nonconsensual sex acts. At no time did Lucas file a written motion and offer of proof, as required by the statute. At the start of trial, however, Lucas’ counsel asked the trial court to permit the defense to present evidence of a prior sexual relationship between the girlfriend and Lucas, “even though I know it goes against the Statute.” App. 4.

The trial court reviewed the statute and then denied the, motion, stating that “[n]one' of the requirements set forth in [the statute] have been complied with.” Id., at 7-8. The court explained that Lucas' request was not made within the time required by Michigan law and that, as a result, no in camera hearing had been held to determine whether the past sexual conduct evidence was admissible. A bench trial then began, in which Lucas’ defense was consent. The trial court did not credit his testimony. The court found Lucas guilty on two counts of criminal sexual assault and sentenced him to a prison term of 44 to 180 months.

The Michigan Court of Appeals reversed. Relying on People v. Williams, 95 Mich. App. 1, 289 N. W. 2d 863 (1980), rev’d on other grounds, 416 Mich. 25, 330 N. W. 2d 823 (1982), the Court of Appeals held that the State’s notice- and-hearing requirement is unconstitutional in all cases where it is used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant. 160 Mich. App. 692, 694-695, 408 N. W. 2d 431, 432 (1987). The court quoted language from Williams stating that the requirement “ ‘serve[s] no useful purpose’ ” in such cases and therefore is insufficient to justify interference with a criminal defendant’s Sixth Amendment rights. 160 Mich. App., at 695, 408 N. W. 2d, at 432, quoting Williams, supra, at 10, 289 N. W. 2d, at 867. Williams surmised that the purpose of the notice-and-hearing requirement is “ ‘to allow the prosecution to investigate the validity of a defendant’s claim so as to better prepare to combat it at trial.’” 160 Mich. App., at 694, 408 N. W. 2d, at 432, quoting Williams, supra, at 10, 289 N. W. 2d, at 866. It concluded, however, that this rationale “‘loses its logical underpinnings’” when applied to evidence of past sexual conduct between the victim and the defendant because “ ‘the very nature of the evidence ... is personal between the parties’ ” and therefore impossible to investigate. 160 Mich. App., at 694, 408 N. W. 2d, at 432, quoting Williams, supra, at 10, 289 N. W. 2d, at 866-867.

The Court of Appeals, relying on Williams, thus adopted a per se rule that the Michigan rape-shield statute is unconstitutional in a broad class of cases. Under this rule, a trial court would be unable to preclude past sexual conduct evidence even where a defendant’s failure to comply with the notice-and-hearing requirement is a deliberate ploy to delay the trial, surprise the prosecution, or harass the victim. We granted certiorari, 498 U. S. 980 (1990), to determine whether the Michigan Court of Appeals’ per se rule is consistent with our Sixth Amendment jurisprudence.

I — I h-f

Michigan s rape-shield statute is silent as to the consequences of a defendant’s failure to comply with the notice- and-hearing requirement. The trial court assumed, without explanation, that preclusion of the evidence was an authorized remedy. Assuming, arguendo, that the trial court was correct, the statute unquestionably implicates the Sixth Amendment. To the extent that it operates to prevent a criminal defendant from presenting relevant evidence, the defendant’s ability to confront adverse witnesses and present a defense is diminished. This does not necessarily render the statute unconstitutional. “[T]he right to present relevant testimony is not without limitation. The right ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’” Rock v. Arkansas, 483 U. S. 44, 55 (1987), quoting Chambers v. Mississippi, 410 U. S. 284, 295 (1973). We have explained, for example, that “trial judges retain wide latitude” to limit reasonably a criminal defendant’s right to cross-examine a witness “based on concerns about, among other things, harassment, prejudice, confusion of the issues,, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U. S. 673, 679 (1986).

Lucas does not deny that legitimate state interests support the notice-and-hearing requirement. The Michigan statute represents a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy. The statute also protects against surprise to the prosecution. Contrary to the Michigan Court of Appeals’ statement that a notice requirement “‘serve[s] no useful purpose’” when the victim is alleged to have had a prior sexual relationship with the defendant, 160 Mich. App., at 695, 408 N. W. 2d, at 432, quoting Williams, swpra, at 10, 289 N. W. 2d, at 867, the notice requirement permits a prosecutor to interview persons who know the parties and otherwise investigate whether such a prior relationship actually existed. When a prior sexual relationship is conceded, the notice-and-hearing procedure allows a court to determine in advance of trial whether evidence of the relationship “is material to a fact at issue in the case” and whether “its inflammatory or prejudicial nature . . . outweigh[s] its probative value.” Mich. Comp. Laws §750.520j(1) (1979).

We have upheld notice requirements in analogous settings. In Williams v. Florida, 399 U. S. 78 (1970), for example, this Court upheld a Florida rule that required a criminal defendant to notify the State in advance of trial of any alibi witnesses that he intended to call. The Court observed that the notice requirement “by itself in no way affected [the defendant’s] crucial decision to call alibi witnesses. ... At most, the rule only compelled [the defendant] to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that [he] planned to divulge at trial.” Id., at 85. Accelerating the disclosure of this evidence did not violate the Constitution, the Court explained, because a criminal trial is not “a poker game in which players enjoy an absolute right always to conceal their cards until played.” Id., at 82. In a subsequent decision, the Court described notice requirements as “a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system.” Wardius v. Oregon, 412 U. S. 470, 474 (1973).

This does not mean, of course, that all notice requirements pass constitutional muster. Restrictions on a criminal defendant’s rights to confront adverse witnesses and to present evidence “may not be arbitrary or disproportionate to the purposes they are designed to serve.” Rock v. Arkansas, supra, at 56. It is not inconceivable that Michigan’s notice requirement, which demands a written motion and an offer of proof to be filed within 10 days after arraignment, is overly restrictive. The State concedes that its notice period is the shortest in the Nation. Brief for Petitioner 38. This case does not require us to decide, however, whether Michigan’s brief notice period is “arbitrary or disproportionate” to the State’s legitimate interests. The Court of Appeals found the statute to be unconstitutional only insofar as it precluded evidence of a rape victim’s prior sexual relationship with a defendant. Because the court expressed no view as to the brevity of the notice period, neither do we.

The sole question presented for our review is whether the legitimate interests served by a notice requirement can ever justify precluding evidence of a prior sexual relationship between a rape victim and a criminal defendant. The answer from the Michigan Court of Appeals was no; it adopted a per se rule prohibiting preclusion of this kind of evidence. This ruling cannot be squared with our cases.

We have indicated that probative evidence may, in certain circumstances, be precluded when a criminal defendant fails to comply with a valid discovery rule. In United States v. Nobles, 422 U. S. 225 (1975), for example, the defendant wished to put on the witness stand an investigator to testify about statements made to him during an investigation, but the defendant refused to comply with the District Court’s order to submit a copy of the investigator’s report to the prosecution. The District Court therefore precluded the investigator from testifying, and this Court held that the District Court’s “preclusion sanction was an entirely proper method of assuring compliance with its order.” Id., at 241. Rejecting the defendant’s Sixth Amendment claim, the Court explained that “[t]he Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system.” Ibid.

Even more telling is Taylor v. Illinois, 484 U. S. 400 (1988). There, the defendant violated a state procedural rule by failing to identify a particular defense witness in response to a pretrial discovery request. The trial court sanctioned this violation by refusing to allow the undisclosed witness to testify. This Court rejected the defendant’s argument that, under the Compulsory Process Clause of the Sixth Amendment, “preclusion is never a permissible sanction for a discovery violation.” Id., at 414 (emphasis in original).

We did not hold in Taylor that preclusion is permissible every time a discovery rule is violated. Rather, we acknowledged that alternative sanctions would be “adequate and appropriate in most cases.” Id., at 413. We stated explicitly, however, that there could be circumstances in which preclusion was justified because a less severe penalty “would perpetuate rather than limit the prejudice to the State and the harm to the adversary process.” Ibid. Taylor, we concluded, was such a case. The trial court found that Taylor’s discovery violation amounted to “willful misconduct” and was designed to obtain “a tactical advantage.” Id., at 417. Based on these findings, we determined that, “[rjegardless of whether prejudice to the prosecution could have been avoided” by a lesser penalty, “the severest sanction [wa]s appropriate.” Ibid.

In light of Taylor and Nobles, the Michigan Court of Appeals erred in adopting a per se rule that Michigan’s notice- and-hearing requirement violates the Sixth Amendment in all cases where it is used to preclude evidence of past sexual conduct between a rape victim and a defendant. The Sixth Amendment is not so rigid. The notice-and-hearing requirement serves legitimate state interests in protecting against surprise, harassment, and undue delay. Failure to comply with this requirement may in some cases justify even the severe sanction of preclusion.

Recognizing our prior decisions, Lucas spends little time trying to defend the Court of Appeals’ broad ruling. He argues primarily that preclusion was an unconstitutional penalty in this case because the circumstances here were not nearly as egregious as those in Taylor. He insists that the prosecution was not surprised to learn that the victim had a prior relationship with Lucas — she had admitted this in the preliminary hearing. Additionally, he contends that his failure to comply with the notice requirement was negligent, not willful.

We express no opinion as to whether or not preclusion was justified in this case. The Michigan Court of Appeals, whose decision we review here, did not address whether the trial court abused its discretion on the facts before it. Rather, the Court of Appeals adopted a per se rule that preclusion is unconstitutional in all cases where the victim had a prior sexual relationship with the defendant. That judgment was error. We leave it to the Michigan courts to address in the first instance whether Michigan’s rape-shield statute authorizes preclusion and whether, on the facts of this case, preclusion violated Lucas’ rights under the Sixth Amendment.

The judgment of the Michigan Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Blackmun,

concurring in the judgment.

I concur in the judgment. I write separately because I was among those who dissented in Taylor v. Illinois, 484 U. S. 400 (1988), where the Court’s majority rejected the argument that the Sixth Amendment prohibits the preclusion of otherwise admissible evidence as a sanction for the violation of a reciprocal-discovery rule.

In a separate dissent in Taylor, id., at 438, I specifically reserved judgment on the type of question presented in this case — whether preclusion might be a permissible sanction for noncompliance with a rule designed for a specific kind of evidence-based on my belief that the rule may embody legitimate state interests that differ substantially from the truth-seeking interest underlying a reciprocal-discovery rule. In my view, if the sanction of preclusion can be implemented to further those interests without unduly distorting the truth-seeking process, the Sixth Amendment does not prohibit the sanction’s use.

The notice-and-hearing requirement adopted by the State of Michigan represents, as respondent Lucas does not deny, “a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy.” Ante, at 150. In addition, a notice-and-hearing requirement is specifically designed to minimize trial delay by providing the trial court an opportunity to rule on the admissibility of the proffered evidence in advance of trial. Finally, as with a notice-of-alibi rule, the notice requirement in this Michigan statute represents a legislative attempt to identify a kind of evidence — evidence of past sexual conduct — with respect to which credibility determinations are likely to be dispositive, and to permit (or perhaps compel) the defendant and the State to gather and preserve evidence and testimony soon after the alleged offense, when memories of witnesses are fresh and vivid. It seems clear that these interests, unlike the State’s interest in truthseeking, may in some cases be advanced by imposition of the sanction of preclusion, and that the sanction therefore would not constitute an arbitrary response to the failure to comply. See Rock v. Arkansas, 483 U. S. 44, 56 (1987).

Of course, the State’s interest in the full and truthful disclosure of critical facts remains of paramount concern in the criminal-trial process, and it may be that, in most cases, preclusion will be “disproportionate to the purposes [the rule is] designed to serve.” Ibid. Nonetheless, I agree with the Court that failure to comply with the notice-and-hearing requirement of Michigan’s rape-shield statute “may in some cases justify even the severe sanction of preclusion.” Ante, at 153.

Justice Stevens,

with whom Justice Marshall joins, dissenting.

Because the judgment entered by the Michigan Court of Appeals in this case was unquestionably correct, I would affirm. The fact that a state court’s opinion could have been written more precisely than it was is not, in my view, a sufficient reason for either granting certiorari or requiring the state court to write another opinion. We sit, not as an editorial board of review, but rather as an appellate court. Our task is limited to reviewing “judgments, not opinions.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984); see Black v. Cutter Laboratories, 351 U. S. 292, 297-298 (1956); see also K mart Corp. v. Cartier, Inc., 485 U. S. 176, 185 (1988).

In this case, I am not at all sure that the Michigan Court of Appeals adopted the “per sc” rule that this Court describes in itsopinion. Seeante, at 146,149,151,152. InitspercMmm, the state court never uses the term “per se,” never mentions the Federal Constitution, and indeed, never cites any federal cases. Rather, the Michigan Court of Appeals simply holds that the trial court’s preclusion of potentially relevant evidence in reliance on an unconstitutional notice provision in a limited class of rape cases requires a new trial. The notice provision at issue here requires a defendant who intends to introduce evidence of a victim’s past sexual relations with him to give notice within 10 days after arraignment on the information. Mich. Comp. Laws §750.520j (1979). As both petitioner and respondent acknowledge, “Michigan appears to be the only State which requires the notice to be filed ‘within 10 days after the arraignment on the information . . . .’” Brief for Petitioner 38. Other States and the Federal Government simply require that notice be filed at various times before the start of the trial. Ibid,.; see Brief for Respondent 29, and n. 24.

Although the Court of Appeals does not explicitly rely on the unduly strict time period (“10 days after arraignment”) provided by the statute, it does hold that “the ten-day notice provision” is unconstitutional when used to preclude testimony of a victim’s past sexual relationship with the defendant. 160 Mich. App. 692, 694, 408 N. W. 2d 431, 432 (1987); id., at 695, 408 N. W. 2d, at 432, quoting People v. Williams, 95 Mich. App. 1, 11, 289 N. W. 2d 863, 867 (1980), rev’d on other grounds, 416 Mich. 25, 330 N. W. 2d 823 (1982). Because the 10-day requirement, in my view, and possibly in the majority’s view, see ante, at 151, is overly restrictive, the use of that notice requirement to preclude evidence of a prior sexual relationship between the defendant and victim clearly provides adequate support for the Court of Appeals’ holding that the statute is unconstitutional. The Court of Appeals, however, discusses the second theory more fully than the first, and therefore, I address it as well.

As I read the Court of Appeals’ per curiam, as well as its earlier opinion in People v. Williams, in the class of rape cases in which the victim and the defendant have had a prior sexual relationship, evidence of this relationship may be relevant when the defendant raises the defense of consent. The Court of Appeals reasoned that in such a situation, the in camera hearing does not play a useful role; rather, it is likely to become a contest of the victim’s word against the defendant’s word, with the judge reaching his decision based upon his assessment of the credibility of each, and that decision is better left to the jury. 95 Mich. App., at 9, 289 N. W. 2d, at 866. As the Court of Appeals explained by quoting extensively from Williams, when surprise is not an issue because both victim and defendant have had a prior relationship and do not need to gather additional witnesses to develop that information, then notice “ ‘in this situation . . . would serve no useful purpose.’” 160 Mich. App., at 695, 408 N. W. 2d, at 432 (quoting Williams, 95 Mich. App., at 10, 289 N. W. 2d, at 867).

The rule that the Michigan Court of Appeals adopts, in which it generally assumes that preclusion is an unnecessarily harsh remedy for violating this statute’s particularly strict notice requirement when the defendant and victim have had a past relationship and the defendant is raising the defense of consent, not only is reasonable, but also is consistent with our opinion in Taylor v. Illinois, 484 U. S. 400 (1988). Although in Taylor we held that the preclusion sanction was appropriate, we did so because in Taylor it was “plain that the case fits into the category of willful misconduct in which the severest sanction is appropriate.” Id., at 417. Of course, in those cases in which there is strong reason to believe that the violation of a rule was designed to facilitate the fabrication of false testimony, an exception to the general rule can be fashioned. I find nothing in the Michigan Court of Appeals’ opinion in this case that would preclude an exceptional response to an exceptional case. See id., at 416-417 (preclusion may be appropriate if the violation was the product of willful misconduct, or was purposely planned to obtain a tactical advantage). Although the Michigan Court of Appeals’ opinion may be less precise than it should have been, I do not believe it went so far as to adopt the “per se” straw man that the Court has decided to knock down today.

Because I am convinced that the Court of Appeals correctly held that this unique Michigan statute is unconstitutional, I would affirm its judgment.

      The Michigan statute provides:
      “(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the ease and that its inflammatory or prejudicial nature does not outweigh its probative value:
      “(a) Evidence of the victim’s past sexual conduct with the actor.
      “(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
      “(2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).” In its brief, the State lists analogous statutes in other jurisdictions. See Brief for Petitioner 38, n. 3.

      The Court of Appeals does rely on People v. Williams, 95 Mich. App. 1, 289 N. W. 2d 863 (1980), rev’d on other grounds, 416 Mich. 25, 330 N. W. 2d 823 (1982), and in that case, the Court of Appeals does refer to the defendant’s Sixth Amendment right to confrontation and cross-examination. 95 Mich. App., at 5, 289 N. W. 2d, at 864. The Sixth Amendment provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” The right of cross-examination is derived from the Sixth Amendment’s language guaranteeing the right of the accused to confront the witnesses against him. Chambers v. Mississippi, 410 U. S. 284 (1978). The Sixth Amendment has been held applicable to the States. Pointer v. Texas, 380 U. S. 400 (1965).

       The court’s holding is summarized in the following portion of its opinion:
      “At the start of trial, defendant moved for the introduction of evidence of the prior sexual relationship between defendant and complainant. Based solely upon the failure of defendant to comply with the notice provision of subsection 2 of the rape shield statute, MCL 750.520j; MSA 28.788(10), the trial court, without holding an in camera hearing to determine the admissibility of the proposed evidence, denied defendant’s motion. This was clear legal error.
      “In People v. Williams, 95 Mich. App. 1, 9-11; 289 NW2d 863 (1980), rev’d on other grounds, 416 Mich. 25 (1982), this Court found the ten-day notice provision and any hearing requirement unconstitutional when applied to preclude evidence of specific instances of sexual conduct between a complainant and a defendant.” 160 Mich. App, 692, 694, 408 N. W. 2d 431, 432 (1987) (emphasis added).
      The court then quoted a lengthy excerpt from its earlier opinion in People v. Williams, concluding with this sentence:
      “This ten-day notice provision loses its constitutional validity when applied to preclude evidence of previous relations between a complainant and a defendant." 160 Mich. App., at 695, 408 N. W. 2d, at 432 (emphasis added).

       In this case in particular the prosecutor did not claim surprise because most of the excluded evidence had been adduced at the preliminary hearing.

       The Court of Appeals was careful to distinguish this situation from the situation in Williams in which the four defendants sought to introduce evidence of prior sexual conduct between the victim and one of the defendants as evidence that the victim would consent to sex with all of the defendants. The Court of Appeals noted that the Michigan Supreme Court had found “this premise untenable.” 160 Mich. App., at 695, 408 N. W. 2d, at 432. The Williams court, like the Court of Appeals here, acknowledged the validity of the notice requirement as applied to “sexual conduct between a complainant and third persons.” People v. Williams, 95 Mich. App., at 10, 289 N. W. 2d, at 866; see 160 Mich. App., at 695, 408 N. W. 2d, at 432.

       “It should be noted that in Illinois, the sanction of preclusion is reserved for only the most extreme cases. In People v. Rayford, 43 Ill. App. 3d 283, 356 N. E. 2d 1274 (1976), the Illinois Appellate Court explained:
      “ ‘The exclusion of evidence is a drastic measure; and the rule in civil cases limits its application to flagrant violations, where the uncooperative party demonstrates a “deliberate contumacious or unwarranted disregard of the court’s authority.” (Schwartz v. Moats, 3 Ill. App. 3d 596, 599, 277 N. E. 2d 529, 531; Department of Transportation v. Mainline Center, Inc., 38 Ill. App. 3d 538, 347 N. E. 2d 837.) The reasons for restricting the use of the exclusion sanction to only the most extreme situations are even more compelling in the case of criminal defendants, where due process requires that a defendant be permitted to offer testimony of witnesses in his defense. (Washington v. Texas, 388 U. S. 14 . . . . ) “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” (Chambers v. Mississippi, 410 U. S. 284, 302 ....)’ 43 Ill. App. 3d, at 286-287, 356 N. E. 2d, at 1277.” Taylor v. Illinois, 484 U. S., at 417, n. 23.


author: Justice O’Connor Justice Marshall,

text:
    TOUBY et ux. v. UNITED STATES
    No. 90-6282.
    Argued April 17, 1991
    Decided May 20, 1991

      O’Connor, J., delivered the opinion for a unanimous Court. Marshall, J., filed a concurring opinion, in which Blackmun, J., joined, post, p. 169.

      Joel I. Klein argued the cause for petitioners. With him on the briefs were Richard G. Taranto and Michael E. Deutsch.

      Jeffrey P. Minear argued the cause for the United States. With him on the brief were Solicitor General Stair, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Richard A. Friedman.

   Justice O’Connor

delivered the opinion of the Court.

Petitioners were convicted of manufacturing and conspiring to manufacture “Euphoria,” a drug temporarily designated as a schedule I controlled substance pursuant to § 201(h) of the Controlled Substances Act, 98 Stat. 2071, 21 U. S. C. § 811(h). We consider whether § 201(h) unconstitutionally delegates legislative power to the Attorney General and whether the Attorney General’s subdelegation to the Drug Enforcement Administration (DEA) was authorized by statute.

I

In 1970, Congress enacted the Controlled Substances Act (Act), 84 Stat. 1242, as amended, 21 U. S. C. §801 et seq. The Act establishes five categories or “schedules” of controlled substances, the manufacture, possession, and distribution of which the Act regulates or prohibits. Violations involving schedule I substances carry the most severe penalties, as these substances are believed to pose the most serious threat to public safety. Relevant here, § 201(a) of the Act authorizes the Attorney General to add or remove substances, or to move a substance from one schedule to another. § 201(a), 21 U. S. C. § 811(a).

When adding a substance to a schedule, the Attorney General must follow specified procedures. First, the Attorney General must request a scientific and medical evaluation from the Secretary of Health and Human Services (HHS), together with a recommendation as to whether the substance should be controlled. A substance cannot be scheduled if the Secretary recommends against it. § 201(b), 21 U. S. C. § 811(b). Second, the Attorney General must consider eight factors with respect to the substance, including its potential for abuse, scientific evidence of its pharmacological effect, its psychic or physiological dependence liability, and whether the substance is an immediate precursor of a substance already controlled. § 201(c), 21 U. S. C. § 811(c). Third, the Attorney General must comply with the notice-and-hearing provisions of the Administrative Procedure Act (APA), 5 U. S. C. §§551-559, which permit comment by interested parties. § 201(a), 21 U. S. C. § 811(a). In addition, the Act permits any aggrieved person to challenge the scheduling of a substance by the Attorney General in a court of appeals. §507, 21 U. S. C. §877.

It takes time to comply with these procedural requirements. From the time when law enforcement officials identify a dangerous new drug, it typically takes 6 to 12 months to add it to one of the schedules. S. Rep. No. 98-225, p. 264 (1984). Drug traffickers were able to take advantage of this time gap by designing drugs that were similar in pharmacological effect to scheduled substances but differed slightly in chemical composition, so that existing schedules did not apply to them. These “designer drugs” were developed and widely marketed long before the Government was able to schedule them and initiate prosecutions. See ibid.

To combat the “designer drug” problem, Congress in 1984 amended the Act to create an expedited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is “necessary to avoid an imminent hazard to the public safety.” §201(h), 21 U. S. C. § 811(h). Temporary scheduling under § 201(h) allows the Attorney General to bypass, for a limited time, several of the requirements for permanent scheduling. The Attorney General need consider only three of the eight factors required for permanent scheduling. § 201(h)(3), 21 U. S. C. § 811(h)(3). Rather than comply with the APA notice-and-hearing provisions, the Attorney General need provide only a 30-day notice of the proposed scheduling in the Federal Register. § 201(h)(1), 21- U. S. C. § 811(h)(1). Notice also must be transmitted to the Secretary of HHS, but the Secretary’s prior approval of a proposed scheduling order is not required. See § 201(h)(4), 21 U. S. C. § 811(h)(4). Finally, § 201(h)(6), 21 U. S. C. § 811(h)(6), provides that an order to schedule a substance temporarily “is not subject to judicial review.”

Because it has fewer procedural requirements, temporary scheduling enables the Government to respond more quickly to the threat posed by dangerous new drugs. A temporary scheduling order can be issued 30 days after a new drug is identified, and the order remains valid for one year. During this 1-year period, the Attorney General presumably will initiate the permanent scheduling process, in which case the temporary scheduling order remains valid for an additional six months. § 201(h)(2), 21 U. S. C. § 811(h)(2).

The Attorney General promulgated regulations delegating to the DEA his powers under the Act, including the power to schedule controlled substances on a temporary basis. See 28 CFR § 0.100(b) (1990). Pursuant to that delegation, the DEA Administrator issued an order scheduling temporarily 4-methylaminorex, known more commonly as “Euphoria,” as a schedule I controlled substance. 52 Fed. Reg. 38225 (1987). The Administrator subsequently initiated formal rulemaking procedures, following which Euphoria was added permanently to schedule I.

While the temporary scheduling order was in effect, DEA agents, executing a valid search warrant, discovered a fully operational drug laboratory in Daniel and Lyrissa Touby’s home. The Toubys were indicted for manufacturing and conspiring to manufacture Euphoria. They moved to dismiss the indictment on the grounds that § 201(h) unconstitutionally delegates legislative power to the Attorney General, and that the Attorney General improperly delegated his temporary scheduling authority to the DEA. The United States District Court for the District of New Jersey denied the motion to dismiss, 710 F. Supp. 551 (1989); and the Court of Appeals for the Third Circuit affirmed petitioners’ subsequent convictions, 909 F. 2d 759 (1990). We granted certiorari, 498 U. S. 1046 (1991), and now affirm.

II

The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” U. S. Const., Art. I, § 1. From this language the Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government. “The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.” Mistretta v. United States, 488 U. S. 361, 371 (1989).

We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches. Id., at 372. Thus, Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928).

Petitioners wisely concede that Congress has set forth in § 201(h) an “intelligible principle” to constrain the Attorney General’s discretion to schedule controlled substances on a temporary basis. We have upheld as providing sufficient guidance statutes authorizing the War Department to recover “excessive profits” earned on military contracts, see Lichter v. United States, 334 U. S. 742, 778-786 (1948); authorizing the Price Administrator to fix “fair and equitable” commodities prices, see Yakus v. United States, 321 U. S. 414, 426-427 (1944); and authorizing the Federal Communications Commission to regulate broadcast licensing in the “public interest,” see National Broadcasting Co. v. United States, 319 U. S. 190, 225-226 (1943). In light of these precedents, one cannot plausibly argue that § 201(h)’s “imminent hazard to the public safety” standard is not an intelligible principle.

Petitioners suggest, however, that something more than an “intelligible principle” is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions. They contend that regulations of this sort pose a heightened risk to individual liberty and that Congress must therefore provide more specific guidance. Our cases are not entirely clear as to whether more specific guidance is in fact required. Compare Fahey v. Mallonee, 332 U. S. 245, 249-250 (1947), cited in Mistretta, supra, at 373, n. 7, with Yakus, supra, at 423-427, and United States v. Grimaud, 220 U. S. 506, 518, 521 (1911). We need not resolve the issue today. We conclude that § 201(h) passes muster even if greater congressional specificity is required in the criminal context.

Although it features fewer procedural requirements than the permanent scheduling statute, § 201(h) meaningfully constrains the Attorney General’s discretion to define criminal conduct. To schedule a drug temporarily, the Attorney General must find that doing so is “necessary to avoid an imminent hazard to the public safety.” § 201(h)(1), 21 U. S. C. § 811(h)(1). In making this determination, he is “required to consider” three factors: the drug’s “history and current pattern of abuse”; “[t]he scope, duration, and significance of abuse”; and “[w]hat, if any, risk there is to the public health.” §§201(c)(4)-(6), 201(h)(3), 21 U. S. C. §§ 811(c)(4)-(6), 811(h)(3). Included within these factors are three other factors on which the statute places a special emphasis: “actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution.” § 201(h)(3), 21 U. S. C. § 811(h)(3). The Attorney General also must publish 30-day notice of the proposed scheduling in the Federal Register, transmit notice to the Secretary of HHS, and “take into consideration any comments submitted by the Secretary in response.” §§ 201(h)(1), 201(h)(4), 21 U. S. C. §§ 811(h)(1), 811(h)(4).

In addition to satisfying the numerous requirements of § 201(h), the Attorney General must satisfy the requirements of § 202(b), 21 U. S. C. § 812(b). This section identifies the criteria for adding a substance to each of the five schedules. As the United States acknowledges in its brief, § 202(b) speaks in mandatory terms, drawing no distinction between permanent and temporary scheduling. With exceptions not pertinent here, it states that “a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance.” §202(b), 21 U. S. C. § 812(b). Thus, apart from the “imminent hazard” determination required by § 201(h), the Attorney General, if he wishes to add temporarily a drug to schedule I, must find that it “has a high potential for abuse,” that it “has no currently accepted medical use in treatment in the United States,” and that “[t]here is a lack of accepted safety for use of the drug . . . under medical supervision.” § 202(b)(1), 21 U. S. C. § 812(b)(1).

It is clear that in §§ 201(h) and 202(b) Congress has placed multiple specific restrictions on the Attorney General’s discretion to define criminal conduct. These restrictions satisfy the constitutional requirements of the nondelegation doctrine.

Petitioners point to two other aspects of the temporary scheduling statute that allegedly render it unconstitutional. They argue first that it concentrates too much power in the Attorney General. Petitioners concede that Congress may legitimately authorize someone in the Executive Branch to schedule drugs temporarily, but argue that it must be someone other than the Attorney General because he wields the power to prosecute crimes. They insist that allowing the Attorney General both to schedule a particular drug and to prosecute those who manufacture that drug violates the principle of separation of powers. Petitioners do not object to the permanent scheduling statute, however, because it gives “veto power” to the Secretary of HHS. Brief for Petitioners 20.

This argument has no basis in our separation-of-powers jurisprudence. The principle of separation of powers focuses on the distribution of powers among the three coequal Branches, see Mistretta, 488 U. S., at 382; it does not speak to the manner in which authority is parceled out within a single Branch. The Constitution vests all executive power in the President, U. S. Const., Art. II, § 1, and it is the President to whom both the Secretary and the Attorney General report. Petitioners’ argument that temporary scheduling authority should have been vested in one executive officer rather than another does not implicate separation-of-powers concerns; it merely challenges the wisdom of a legitimate policy judgment made by Congress.

Petitioners next argue that the temporary scheduling statute is unconstitutional because it bars judicial review. They explain that the purpose of requiring an “intelligible principle” is to permit a court to “‘ascertain whether the will of Congress has been obeyed.’” Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 218 (1989), quoting Yakus, supra, at 426. By providing that a temporary scheduling order “is not subject to judicial review,” § 201(h)(6), the Act purportedly violates the nondelegation doctrine.

We reject petitioners’ argument. Although § 201(h)(6), 21 U. S. C. § 811(h)(6), states that a temporary scheduling order “is not subject to judicial review,” another section of the Act plainly authorizes judicial review of a permanent scheduling order. See § 507, 21 U. S. C. § 877. Thus, the effect of § 201(h)(6) is merely to postpone legal challenges to a scheduling order for up to 18 months, until the administrative process has run its course. This is consistent with Congress’ express desire to permit the Government to respond quickly to the appearance in the market of dangerous new drugs. Even before a permanent scheduling order is entered, judicial review is possible under certain circumstances. The United States contends, and we agree, that § 201(h)(6) does not preclude an individual facing criminal charges from bringing a challenge to a temporary scheduling order as a defense to prosecution. See Brief for United States 34-36. This is sufficient to permit a court to “ ‘ascertain whether the will of Congress has been obeyed.’” Skinner, supra, at 218, quoting Yakus, 321 U. S., at 426. Under these circumstances, the nondelegation doctrine does not require, in addition, an opportunity for preenforcement review of administrative determinations.

Ill

Having concluded that Congress did not unconstitutionally delegate legislative power to the Attorney General, we consider petitioners’ claim that the Attorney General improperly delegated his temporary scheduling power to the DEA. Petitioners insist that delegation within the Executive Branch is permitted only to the extent authorized by Congress, and that Congress did not authorize the delegation of temporary scheduling power from the Attorney General to the DEA.

We disagree. Section 501(a) of the Act states plainly that “[t]he Attorney General may delegate any of his functions under [the Controlled Substances Act] to any officer or employee of the Department of Justice.” 21 U. S. C. § 871(a). We have interpreted § 501(a) to permit the delegation of any function vested in the Attorney General under the Act unless a specific limitation on that delegation authority appears elsewhere in the statute. See United States v. Giordano, 416 U. S. 505, 512-514 (1974). No such limitation appears with regard to the Attorney General’s power to schedule drugs temporarily under § 201(h).

The judgment of the Court of Appeals is

Affirmed.

Justice Marshall,

with whom Justice Blackmun joins, concurring.

I join the Court’s opinion but write separately to emphasize two points underlying my vote. The first is my conclusion that the opportunity of a defendant to challenge the substance of a temporary scheduling order in the course of a criminal prosecution is essential to the result in this case. Section 811(h)(6) of Title 21 U. S. C. expressly prohibits direct review of a temporary scheduling order in the Court of Appeals but says nothing about judicial review of such an order in other settings. Under established rules of construction, we must presume from Congress’ silence on the matter that it did not intend to foreclose review in the enforcement context. See Estep v. United States, 327 U. S. 114, 120-122 (1946). See generally McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991); Abbott Laboratories v. Gardner, 387 U. S. 136, 140-141 (1967). An additional consideration reinforces this principle here. As the Court notes, judicial review perfects a delegated-lawmaking scheme by assuring that the exercise of such power remains within statutory bounds. See, e. g., Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 218-219 (1989). Because of the severe impact of criminal laws on individual liberty, I believe that an opportunity to challenge a delegated lawmaker’s compliance with congressional directives is a constitutional necessity when administrative standards are enforced by criminal law. Cf. United States v. Mendoza-Lopez, 481 U. S. 828, 837-839 (1987); Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1379-1383 (1953). We must therefore read the Controlled Substances Act as preserving judicial review of a temporary scheduling order in the course of a criminal prosecution in order to save the Act’s delegation of lawmaking power from unconstitutionality. Cf. Webster v. Doe, 486 U. S. 592, 603-604 (1988).

The second point that I wish to emphasize is my understanding of the breadth of the Court’s constitutional holding. I agree that the separation of powers doctrine relates only to the allocation of power betiveen the Branches, not the allocation of power within a single Branch. But this conclusion by no means suggests that the Constitution as a whole is indifferent to how permissibly delegated powers are distributed within the Executive Branch. In particular, the Due Process Clause limits the extent to which prosecutorial and other functions may be combined in a single actor. See, e. g., Morrissey v. Brewer, 408 U. S. 471, 485-487 (1972). Petitioners raise no due process challenge in this case, and I do not understand anything in today’s decision as detracting from the teachings of our due process jurisprudence generally.


author: Per Curiam.

text:
    FORD MOTOR CREDIT CO., INC. v. DEPARTMENT OF REVENUE, STATE OF FLORIDA
    No. 88-1847.
    Argued November 6, 1990
    Decided May 20, 1991

      Mark L. Evans argued the cause for appellant. With him on the briefs were James E. Tribble, John M. Neberle, and Alan I. Horowitz.

      H. Bartow Farr III argued the cause for appellee. With him on the brief were Robert A. Butterworth, Attorney General of Florida, Joseph C. Mellichamp III, Senior Assistant Attorney General, Jeffrey M. Dikman, Assistant Attorney General, and Richard G. Taranto.

      Briefs of amici curiae urging reversal were filed for the Committee on State Taxation of the Council of State Chambers of Commerce et al. by Amy Eisenstadt, Paul H. Frankel, and Frank M. Salinger; and for Caterpillar Inc. et al. by Kenneth R. Hart.

   Per Curiam.

The judgment of the District Court of Appeal of Florida, First District, is affirmed by an equally divided Court.

Justice O’Connor took no part in the decision of this case.