norml23 - Page 66

 Ill. THE "NEW ERA" OF JUD}CIAL CONTROL OF ADM_NBTRATIVE
 DBCRETION, AS REPRESENTED BY THE SUPREME COURT'S RECENT
 LANDMARK DECISION IN iNDUSTRIAL UNION DEPARTMENT, COMPELS THE
 COURT TO RECEIVE EVIDENCE TO DETERMINE WHETHER THE DEA
 ADMINISTRATOR HAS ABUSED HIS DBCRETION TO RECLASSIFY
 CONTROLLED SUBSTANCES PURSUANT TO 21 U. SoC. 8! 1o
 Defendant's argument that the failure of the Administrator of the
 DEA to adopt and abide by the CSA procedures to reclassify marijuana
 from one Schedule to another must be evaluated, in the first instance,
 in the context of two fundamental principles of our federal system of
 government. First, a6though the CSA was enacted on the basis of the
 commerce clause of the Federal Constitution and although Conqress'
 commerce power is virtually unJimited, the Supreme Court's holding in
 U.S.v.E.C. Knight Coo, 156 U.S. 1 (t 894), that the demarcation
 between the police power and the commerce power be scrupulously
 honored, is still the law of the land. Second, it is true that the
 Supreme Court holding in Field vo Clark, 143 U.S 649, 694 (1892),that
 "congress cannot delegate legislative power to the president" was later
 held to permit a legislative authorization to an administrator to adopt
 regulations, the vioEation of which was made a crime by statute (see
 U.S.v. Grimaud, 220 U.So 506 (1911)o However, an analysis of the cases
 leading to Grimaud, as well as Grimaud's progeny, shows dearly that
 the type of delegation permissible under our federal system is limited
 to the power to enact and enforce rules necessary for the
 implementation of valid regulatory function, and is not the power to
 proscribe conduct or prescribe penalties the purpose of which is
 primarily law enforcement oriented. See Schenk w United States, 249
 U.S° 49, 54-59 (19i 9)°
 Ao The Police Power/Commerce Power Dichotomy
 In the landmark cases of United States v. Hudson & Goodwin, 7
 Cranch 32, 3 Lo Ed. 259 (U.& 1812) and United States v. CooJidge,
 1 Wheat. 415, 4 LEd 124 (UoSo 1816), the Supreme Court: settled ex _
 plosive political questions by holding that the federal government, and
 particularly the federal courts, do not possess general police powers;
 that is, "The framers ctearty intended to exclude the federal courts
 from jurisdiction over common law crimes, under crimes under the law of