norml23 - Page 75

 scrutiny of the exercise of discretion by agency heads is mandatory
 under modern federal administrative Jaw. Rt is particuJarly noteworthy
 that none of the crucial cases which changed the law of judiciaJ review
 of agency discretion so drastically has ever been mentioned in any of
 the appelJate cases rejecting defendants' chaJJenges to particular
 classifications of controJJed substances. Perhaps the reason Js that
 criminal practitioners are, as a ruJer not famiJiar with administrative
 Jaw; it may also be true, however, that the unprecedented inclusion of
 administrative Jaw principles in a criminal statute has simply gone
 unnoticed by the parties, the practitioners, and the courts which have
 faced this issue.
 2. Although the origin of the revoJution in the judiciaJ review
 of agency discretion will probably never be ascertained, it Js _ikely
 that Kenneth CuJp Davis' Discretionary Justice: A Preliminary Inquiry
 (1969) and Professor Jaffe's book entitled Judiciat Control of
 Administrative Action (1965) at least crystallized, if not caused, the
 ever-growing restrictions on unfettered agency discretion. In any
 event, in eady 197i the Supreme Court announced that the presumption
 of regularity to which an agency head's decision is entitled "is not to
 shieJd his action from a thorough, probing in-depth review°" Citizens
 to Preserve Overton Park v. Volpe, 401 U.So 4.02, 514.. (I971). Further,
 the Court went on to say that:
 The Court is first required to decide whether
 the Secretary acted within the scope of his
 authority. [Citation.] This determination nsturaJJy
 begins with a delineation of the scope of the
 Secretary's authority and discretion. [Citation. ]
 Scrutiny of the facts does not end, however,
 with the determination that the Secretary has acted
 within the scope of his statutory authority.
 Section 706(2)(A) requires a finding that the
 actuaJ choice made was not "arbitrary, capricious,
 an abuse of discretion, or otherwise 1 hot in
 accordance with the lawo"
 Id. at 41 5-416.
 The Supreme Court remanded the matter in Overton Park to the
 district court for "plenary review of the Secretary's decision;" in so
 doing, the Court noted that such review was to be based on the full