Rettig v. United States, No. 18-10545 (5th Cir. Apr. 9, 2021) (Ho, J., dissenting from denial of rehearing en banc)

I covered the panel opinion in this case here and will therefore assume familiarity with the basic facts and legal issues. Judge Ho's dissent from the Court's denial of rehearing en banc last week is recommended reading. And because one of my own cases currently pending in the Ninth Circuit raises a private nondelegation doctrine argument similar to the one at issue in the Certification Rule case, I decided I would dedicate a post to the topic.

Judge Ho, the Certification Rule, and the Private Nondelegation Doctrine

As my previous post explains, HHS's 2002 Certification Rule clarified what it means for a managed-care organization's capitation rate to be "actuarially sound." To qualify, the rate must (among other things) "[h]ave been certified ... by actuaries who meet the qualification standards established by the American Academy of Actuaries and follow the practice standards established by the Actuarial Standards Board."  42 C.F.R. § 438.6(c)(1)(i)(A)-(C) (2002). Judge Ho flagged three "critical features" of that Rule that, in his view, render it "uniquely offensive to the Constitution":

  1. It subdelegates substantive lawmaking power, rather than some minor factual determination or ministerial task.
  2. the subdelegation is authorized by an administrative agency (HHS), rather than by Congress; and
  3. the agency is subdelegating power to a private entity, rather than to another governmental entity that is at least minimally accountable to the public.

The Supreme Court may have rejected every non-delegation claim it has seen since 1935, Judge Ho explained, but none "involve[d] this toxic combination of constitutional abnormalities." Judicial acquiescence in the face of such an arrangement meant "allow[ing] the real work of lawmaking to be exercised by private interests colluding with agency bureaucrats, rather than by elected officials accountable to the American voter." If the non-delegation really is so toothless, he warned, "[t]he right to vote means nothing."

Sisley v. DEA and Private Nondelegation in the Controlled Substances Act

As I reported in a previous post, the Ninth Circuit has granted oral argument (20 minutes per side) in an important case I'm working on: Sisley v. DEA, No. 20-71433. The case involves a challenge to DEA's 2020 denial of a petition to initiate proceedings to reschedule marijuana. See 21 U.S.C. § 811(a).

Despite widespread state acceptance of its medical utility, DEA continues to insist marijuana has "no currently accepted  medical use in treatment in the United States" and must therefore remain in Schedule I. See 21 U.S.C. § 812(b)(1)(B). Under the five-part test DEA created for assessing currently accepted medical use, state acceptance--no matter how widespread--is categorically irrelevant. We argue that standard violates the plain language of the CSA and DEA's refusal even to consider the state acceptance of marijuana's use as medicine is arbitrary and capricious.

Our private nondelegation argument addresses DEA's other stated reason for refusing to reconsider marijuana's scheduling: 21 U.S.C. § 811(d)(1). That provision requires the Attorney General (whose responsibilities under the CSA have since been assigned to DEA) to place drugs in the schedule “he deems most appropriate” to carry out international treaty obligations in effect on October 27, 1970. According to DEA, section 811(d)(1) and an international treaty called the Single Convention on Narcotic Drugs of 1961 require that marijuana remain in Schedules I or II.

We argue that section 811(d)(1) unconstitutionally delegates legislative power twice: first to a nongovernmental entity and second to the Attorney General. The statute delegates regulatory authority to the World Health Organization and the United Nations to set binding codes of domestic criminal law. And, as DEA has acknowledged, “[s]ubsequent modification or amendment to these international treaties would, of course, become controlling as federal law” as well.

Thus, when the United Nations added AH-7921 to the Single Convention back in 2015, DEA promptly placed AH-7921 in Schedule I. 81 FR 22023-01 (Apr. 14, 2016). It did so without notice and comment and without making any of the findings ordinarily required before a substance may be placed in Schedule I. Its explanation was simple. Citing section 811(d)(1), it explained:

If a substance is added to one of the schedules of the Single Convention on Narcotic Drugs, 1961, then, in accordance with article 3, paragraph 7 of the Convention, as a signatory Member State, the United States is obligated to control that substance under its national drug control legislation, the CSA.

With that, AH-7921 was placed in Schedule I.

The private delegation commanded by section 811(d)(1) bears many of the hallmarks Judge Ho found "uniquely offensive" to the Constitution. First, it delegates substantive lawmaking power. Indeed, because scheduling decisions have serious implications, section 811(d)(1) is arguably even more problematic in this regard than the Certification Rule. A

Second, section 811(d)(1) delegates lawmaking power to entities not accountable to the American people in any way. And unlike the Certification Rule, which delegated lawmaking authority to private domestic organizations, section 811(d)(1) permits foreign organizations to control domestic criminal. While the Actuarial Standards Board isn't accountable to American voters, it is at least run by them.

And finally, just as the Board's authority under the Certification Rule often escaped HHS review entirely, the United Nation's and WHO's authority to dictate U.S. criminal law under section 811(d)(1) is entirely beyond DEA's control. Those organizations do what they want and are no more beholden to DEA than they are to American voters.

Section 811(d)(1)'s unlawful delegation undercuts American democracy. If the government wants to maintain barriers to researching the real-world marijuana that millions use daily, so be it. But some government official in this country must be accountable for that unpopular choice. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010) (“Our Constitution was adopted to enable the people to govern themselves, through their elected leaders.”). Allowing government to evade the consequences of unpopular decisions by resort to arcane international schedules is repugnant to the democratic values that underlie our Constitution.

Section 811(d)'s delegation to the Attorney General (and thus DEA) of authority to administer international treaties is equally problematic. International drug
treaties are not self-executing. They merely create international law commitments. Thus, they do not have domestic effect until Congress enacts legislation under an enumerated power. Medellin v. Texas, 552 U.S. 491, 505, 521 (2008). Section 811(d)(1) charges the Attorney General with executing this quintessential legislative power with respect to domestic criminal law by choosing the schedule “he deems most appropriate.”

An even more serious delegation problem arises next: after handing treaty-execution authority to the Attorney General, the statute disclaims any intelligible principle that might guide the Attorney General's choice among schedules. In Touby v. United States, the Supreme Court upheld the CSA’s delegation of power to the Attorney General to temporarily schedule substances because the Act imposed concrete constraints on his discretion. But § 811(d)(1) unambiguously removes those restraints. If it applies, as it does with marijuana, the Attorney General must place a drug in the schedule “he deems most appropriate to carry out such obligations, without regard to the findings required by subsection (a) of this section or section 812(b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section.” 21 U.S.C. § 811(d)(1). There is nothing else.

In sum, as troubling as the Certification Rule's "toxic combination of constitutional abnormalities" is, section 811(d)(1)'s unique double-delegation is even more constitutionally offensive. It runs to both extremes: The Attorney General has no discretion to override the floor dictated by an unelected international body. And yet he has unfettered discretion to schedule above that floor. Even if these two handoffs could stand independently, taken together they plainly violate Separation of Powers norms.

You can check out all briefing in the Sisley case here. The June 10, 2021 oral argument is supposed to be livestreamed, too. Stay tuned!

Problematic Private Delegations: The Certification Rule and Section 811(d) of the Controlled Substances Act
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