norml23 - Page 69
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Berrigan, 482 F.2d 171, 1 82-1 83 (3d Ciro 1973).
Such delegation of authority must be accompanied by
sufficient guidelines and standards for the
exercise of the authority. There are sufficient
guidelines expressed in the language of 21 UoSoC.
811 itself (see subsection (b) and (c) of 811), in
addition to the application of the protections of
the Administrative Procedure Act.
564 Fo2d at 843-844o
The problem with this type of response is that the Supreme Court
cases retied upon did not establish the validity of the delegation of
power to define crime, but, instead, permitted only the delegation of
the power to make administrative rules necessary for the agency to
carry out a valid regulatory purpose. Thus, in United States v. Avent,
266 U.So 127, 130-131 (1924), the Supreme Court, per Mr. Justice
Holmes, affirmed the imposition of a fine for the violation of
emergency regulations adopted by the Interstate Commerce Commission to
give priority to railroad traffic whenever the Commission found that a
national emergency existed° In holding that the statute did not violate
constitutional Jimitations, the Court noted particuJarly that the power
of the Commission was confined to emergencies, and that the rules it
adopted must reasonably relate to the regulation of commerce under the
authority of United States w Grimaud, supra, at 506, 512-!4. "Congress
may make violation of the Commission ruJes a crime." United States vo
Avent, supra. (Emphasis added).
In NcKinley v. United States, 249 U.S. 397, 399 (I 919), the
Supreme Court upheld the delegation to the Secretary of War of the
power to make rules regulating houses of prostitution near military
installations during World War I, on the ground that the war power
possessed by Congress carries with it the power t:o make rules and
regulations for the heaJth and weJfare of military personnel in so
holding, the court relied explicitly on its prior decision in Grimaudo
Gdmaud is considered to be the reading case on the question of
whether a Jegis[ature may authorize an administrative agency to issue
regulations, the violation of which is punishable as a crime by virtue
of penaJties set in the statute. See, Schenk, supra; La Fave and Scott,
Criminal Law, p. 102 (1972); Gelhorn, "Administrative Prescription and
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