norml23 - Page 74

 Second, it guarantees that when Congress finds it necessary to delegate
 authority, it provides the recipient of that authority with criteria
 sufficiently specific to guide the exercise of the delegated
 discretion. Third, "derivative of the second, the doctrine insures that
 courts charged with reviewing the exercise of delegated legislative
 discretion wi[[ be able to test that exercise against ascertainable
 standards." [d. at 2885-2886°
 Justice Marshall, writing for himself and the three other
 dissenting justices, wrote a lengthy dissent in which he repeated the
 argument he first made in his concurring opinion in FTC v. New England
 Power Co., 415 U.& 345, 352-53 (1973) that the nonde[egation doctrine
 "is surely as moribund as the substantive due process approach of the
 same era _- for which the court if fond of writing an obituary. .if
 not more so." Justice Marshall then excoriates the pJurality for
 returning to the era of substantive due process and strict
 nonde_egation without actua[ty saying so. Evan as he does so, however,
 he acknowledges and accepts the principles established by the landmark
 administrative law cases of the t970's:
 [ do not, of course, suggest that it is appropriate for a
 federal court reviewing agency action blindJy 1:o defer to the
 agency's finding of fact and determination of policy. Under
 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
 416, 91 S.Ct. 814, 823, 28 LEd. Zd 136 (1971 ), courts must
 undertake a "searching and careful" judiciam inquiry into those
 factors. Such an inquiry is designed to require the agency to take
 a "hard look," Kleppe v. Sierra C_ub, 427 UoS. 3£0, 410, 96 S.Ct.
 2718, 2730, 49 L. EdoZd 576 (1976) (citation omitted), by
 considering the proper factors and weighing them in a reasonable
 manner. There is also room for especially rigorous judicial
 scrutiny of agency decisions under a rationale akin to that
 offered in United States Vo Carolene Products, Inc., 304 U.S. !44,
 152, N.4, 58 S.Ct. 778, 82 LEd. 1234 (1938). See EnvironmentaE
 Defense Fund v. RuckeJshaus, 142 UoSo App. D.Co 74, 439 F 2d 584
 (197!).
 It is simply not possible to read the five opinions, covering some
 60 pages in the Supreme Court Reporter, without coming inexorably to
 the conclusion that the case law dealing with challenges by criminal
 defendants to the CSA has developed in a vacuum. Every single member of
 the Supreme Court accepts without question the proposition that strict