395 F.

2d 5

Lawrence W. WHITE, Defendant, Appellant,

v.
UNITED STATES of America, Appellee.
No. 7018.

United States Court of Appeals First Circuit.

May 17, 1968.

Kevin M. Keating, Needham, Mass., with whom Joseph S. Oteri and

Crane, Inker & Oteri, Boston, Mass., were on brief, for appellant.
John Wall, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty.,
and Albert F. Cullen, Jr., Asst. U. S. Atty., were on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges
COFFIN, Circuit Judge.

This is an appeal from a conviction based on an indictment in two counts

charging defendant with unlawfully, knowingly and wilfully selling and
disposing of a quantity of lysergic acid diethylamide (LSD), a "depressant or
stimulant drug" within 21 U.S.C. 321 (v) (3)1 , to an agent of the Bureau of
Drug Abuse Control, Food and Drug Administration, in violation of 21 U.S.C.
331(q) (2).2 The indictment contained no allegation that the drugs in question
traveled in interstate commerce or that the defendant intended to transport them
in interstate commerce.

Appellant challenges the constitutionality of both 21 U.S.C. 331(q) (2) and 21

U.S.C. 321(v) (3) asserting, as to the former, that the statute exceeds the
power delegated to Congress under the Commerce Clause for the reason that it
is not expressly limited, or intended to be limited, to matters in, mingled with, or
found to affect interstate commerce; and, as to the latter, that the statute
defining a "depressant or stimulant drug" and delegating to the Secretary of
Health, Education and Welfare authority to classify certain drugs under that
rubric is a delegation of legislative authority in violation of Article I, Section 1
of the Constitution.

The 1965 amendments to the Federal Food, Drug and Cosmetic Act of 1938, 21
U.S.C. 301-392, including the two sections challenged here, were sought in
order "to provide a much needed strengthening of * * * controls * * available
under the [Act] * * * and * * * to provide additional sanctions * * *." Hearings
on H.R. 2 Before the House Committee on Interstate & Foreign Commerce,
89th Cong., 1st Sess., at 8 (1965). These amendments were enacted into law
during the summer of 1965 based upon congressional findings and declaration
of policy that may be reduced to the following propositions: (1) the
unsupervised use of depressant and stimulant drugs is a hazard to public health
and safety including safety on the highways without distinction between
interstate and intrastate traffic; (2) there is a widespread illicit traffic in such
drugs moving in or affecting interstate commerce; (3) it is impossible to
determine whether such drugs, held for illicit sale, often unlabelled, have been
in or have affected interstate commerce; (4) therefore, effective regulation of
interstate commerce requires regulation of intrastate commerce. 1965 U.S.Code
Cong. & Adm.News, p. 241. These findings stem from varied and extensive
testimony as to the extent of illegal drug traffic and unauthorized use, the
diversion of basic chemicals and finished drugs from legitimate channels of
production and distribution, and the physical and mental harm, temporary and
longlasting, resulting from drug misuse. Hearings, supra.

It is not argued that the congressional purpose is other than a wise and timely
response to the evidence adduced at the hearings. The sole question is whether
Congress can achieve its purpose through its Commerce Clause power. That
Congress may protect legitimate interstate traffic in depressant and stimulant
drugs against competition from illicit interstate traffic by forbidding the latter is
clear. That it can go so far as to forbid intrastate traffic which is specifically
found to affect interstate commerce is also established doctrine. But whether it
can forbid the intrastate sale, delivery, or other disposition of the covered
drugs, without requiring proof that interstate commerce is affected by the
specific transaction, is the question to be resolved here.

The congressional findings reveal two justifications for exercising an acrossthe-board prohibition. Both speak to the impossibility of the intrastate-interstate
distinction as a useful concept in regulating this particular problem. One
addresses the inseparability of effect on safety of drug consumption; the other,
the inseparability of the problem of regulating distribution. Unlike many other
objects of federal regulation, depressant and stimulant drugs are not an inert,
passive substance, which, after use, pass into the realm of statistics of
consumption. They exert an influence on the consumer, which may spell
danger or disaster for people or property from or in other states. As for
distribution, Congress has acknowledged that attempts prior to 1965 to regulate

proscribed interstate traffic have failed because of the impracticability and

impossibility of determining source of origin identification.
6

We think that Congress has adequately identified a situation where its dual
objective of fostering proper interstate commerce and proscribing improper
interstate commerce would be aborted without the power to regulate all
interstate commerce. That this is a farreaching conclusion we acknowledge. We
also recognize that it is subject to abuse. But as between allowing exercise to
the outer limit of the commerce power in what we deem a proper case and
forbidding it because of fears of its use in an improper case, we choose the
former, having confidence in the ability of both Congress and the courts to
distinguish use from abuse.

The traditional landmark cases under the Commerce Clause, such as Houston,
East & West Texas Ry. Co. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.
Ed. 1341 (1914); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122
(1942); and Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct.
348, 13 L.Ed.2d 258 (1964), have upheld the exercise of federal power to
protect, foster, and nourish interstate commerce which has implicitly been
equated with beneficial activity. For the most part they have been concerned
with the quantitative flow of commerce. Other cases, such as Cloverleaf Butter
Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754 (1942); United
States v. Walsh, 331 U.S. 432, 67 S.Ct. 1283, 91 L.Ed. 1585 (1947); and
McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754 (1913),
have involved exercises of the commerce power explicitly distinguishing
between interstate commerce which is beneficial and that which is not. In this
case Congress has sought both to encourage a certain kind of quality of
interstate commerce and to proscribe a different quality of commerce, whether
it be interstate or intrastate.

Though the exercise of the commerce power may transcend earlier precedents,
the rationale for that exercise in a case of demonstrable necessity has long been
established. In United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed.
609 (1941), the Court upheld legislation requiring that the Fair Labor Standards
Act apply to companies producing goods, some of which were expected to be
shipped in interstate commerce. In order to suppress competition in interstate
commerce from goods produced under substandard labor conditions, Congress
made "no distinction as to the volume or amount of shipments in the commerce
or of production for commerce by any particular shipper or producer. It
recognized that in present day industry, competition by a small part may affect
the whole and that the total effect of the competition of many small producers
may be great." Id. at 123, 61 S.Ct. at 461. The Court recognized that the power

to regulate commerce "extends not only to those regulations which aid, foster
and protect the commerce, but embraces those which prohibit it." Id. at 113, 61
S.Ct. at 456. And it concluded, "Congress, having by the present Act adopted
the policy of excluding from interstate commerce all goods produced for the
commerce which do not conform to the specified labor standards, it may choose
the means reasonably adapted to the attainment of the permitted end, even
though they involve control of intrastate activities." Id. at 121, 61 S.Ct. at 460.
9

In Darby the means chosen was to subject to wage and hour requirements the
employees of an employer who manufactured his product "with the intent or
expectation that according to the normal course of his business all or some part
of it will be selected for shipment to [out-of-state] customers." Id. at 117, 61
S.Ct. at 459. Congress had recognized "that it would be practically impossible *
* * to restrict the prohibited kind of production to the particular pieces of
lumber, cloth, furniture or the like which later move in interstate rather than
interstate commerce." Id. at 118, 61 S. Ct. at 459.

10

What was a "means reasonably adapted to the attainment of the permitted end"
in Darby, i.e., regulatory legislation requiring some proof, admittedly
attenuated, of connection with interstate commerce, was specifically declared
by Congress in the legislation before us not to be reasonably adapted to control
of interstate drug traffic. We deem the response of Congress in forbidding all
unauthorized traffic in depressant and stimulant drugs, after having tried milder
approaches and having seen their ineffectiveness, no less justified and proper
than was its abandonment of case-by-case adjudication of racial discrimation in
voting and its enactment of the more stringent remedies of the Voting Rights
Act of 1965. State of South Carolina v. Katzenbach, 383 U.S. 301, 313-315, 86
S.Ct. 803, 15 L.Ed.2d 769 (1966).

11

In Heart of Atlanta, supra, while the facts demonstrated considerable

involvement of the motel with interstate clientele, the Court was dealing with a
statute which declared that any motel serving transient guests affects commerce
per se (section 201(c)), and, willing to assume that the motel was of a "purely
local character", it stated that "Congress may as it has prohibit racial
discrimination by motels serving travelers, however `local' their operations may
appear." 379 U.S. at 258, 85 S.Ct. at 358. Mr. Justice Black, concurring,
expressed the same thought this way: "[I]n deciding the constitutional power of
Congress in cases like the two before us [Heart of Atlanta Motel and
Katzenbach v. McClung, 370 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964)],
we do not consider the effect on interstate commerce of only one isolated,
individual, local event, without regard to the fact that this single local event
when added to many others of a similar nature may impose a burden on

interstate commerce by reducing its volume or distorting its flow." Id. at 275,
85 S.Ct. at 367. 3
12

We therefore hold that in enacting 21 U.S.C. 331(q) (2) Congress did not
exceed its constitutional power. Accord, United States v. Freeman, 275 F.Supp.
803 (D.Ill.1967).

13

Defendant also challenges the validity of 21 U.S.C. 321(v) (3) on the ground
that it constitutes a delegation of legislative power not permitted by Article I,
Section 1 of the Constitution. Section 321(v) (3), also part of the 1965
amendments, defines "depressant or stimulant drug", the sale, delivery or other
disposition of which is declared illegal by 21 U.S.C. 331(q) (2) and 360a(b),
as any drug which the Secretary of Health, Education and Welfare finds after
investigation, and declares by appropriate regulation, to have a "potential for
abuse" because of its "depressant or stimulant effect on the central nervous
system or its hallucinogenic effect". Defendant argues that this delegation is
without intelligible guidelines and constitutes an "implicit abdication by
Congress of its responsibility to state with clarity why it wants particular acts
declared illegal. * * *"

14

We do not agree. The proscribed traffic is in "depressant or stimulant drugs"

which have a "potential for abuse" because of their "effect on the central
nervous system or [their] hallucinogenic effect." While we consider this by
itself substantially more than a vacant standard, we note that the phrase
"potential for abuse" is further illuminated and defined in the legislative history
of the drug control amendments.

15

"The committee feels that a drug's `potential for abuse' should be determined on
the basis of its having been demonstrated to have such depressant or stimulant
effect on the central nervous system as to make it reasonable to assume that
there is a substantial potential for the occurrence of significant diversions from
legitimate drug channels, significant use by individuals contrary to professional
advice, or substantial capability of creating hazards to the health of the user or
the safety of the community." 1965 U.S.Code Cong. & Adm.News, p. 1899.

16

See United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 83, 53 S.Ct.
42, 77 L.Ed. 175 (1932). Other schemes much broader in scope and with less
guidance to administrative agencies have been countenanced by the Supreme
Court. See, e.g., State of Arizona v. State of California, 373 U.S. 546, 83 S.Ct.
1468, 10 L.Ed.2d 542 (1963), decree entered, 376 U.S. 340, 84 S.Ct. 755, 11
L.Ed.2d 757 (1964) (authority to apportion Colorado River Waters within

limits but no guidelines); Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294,
92 L.Ed. 1694 (1948) ("excessive profits"); Yakus v. United States, 321 U.S.
414, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ("fair and equitable price fixing");
United States v. Shreveport Grain & Elevator Co., supra ("reasonable
variations"); Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct.
220, 74 L.Ed. 524 (1930) ("just and reasonable rates").
17

Finally, defendant argues that the Secretary of Health, Education and Welfare is
no better suited than the Congress to perform the task of designating drugs
which have a "potential for abuse" and, in order to insure that the congressional
intent in enacting 321 (v) (3) has been served, the Secretary should not be
vested with such authority. Even considering that relative suitability should be
relevant, we do not concede defendant's premise. See 1965 U.S.Code Cong. &
Adm.News, p. 1895. Of course the Congress can always amend the Act by
adding a statutory list of proscribed drugs it finds potentially abusive. But in
order to legislate wisely it would still need the advice of the Department of
Health, Edcation and Welfare. Rapid drug development and increased public
experimentation, however, suggest the wisdom of delegation and the
inappropriateness of statutory lists.

18

Affirmed.

Notes:
1

" 321 Definitions; generally For the purposes of this chapter

*****
(v) The term `depressant or stimulant drug' means
*****
(3) any drug which contains any quantity of a substance which the Secretary,
after investigation, has found to have, and by regulation designates as having, a
potential for abuse because of its depressant or stimulant effect on the central
nervous system or its hallucinogenic effect * * *."
*****
"21 C.F.R. 166.3 Listing drugs defined in section 201(v) of the act.

*****
(c) The Commissioner has investigated and designates all drugs * * *
containing any amount of the following substances as having a potential for
abuse because of their:
*****
(3) Hallucinogenic effect:
Established name

Some trade and

other names

*****
LSD-25; LSD

d-Lysergic acid
diethylamide."

" 331 Prohibited Acts The following acts and the causing thereof are
prohibited;
*****
(q) (2) the sale, delivery, or other disposition of a drug in violation of section
360a(b) of this title * * *."
*****
" 360a Depressant and stimulant drugs Manufacturing, compounding, and
processing; persons exempt from prohibition
*****
(b) No person other than [stated exceptions which do not here apply] shall
sell, deliver, or otherwise dispose of any depressant or stimulant drug to any
other person."

Cf. United States v. Five Gambling Devices, 346 U.S. 441, 74 S.Ct. 190, 98 L.
Ed. 179 (1953). The doubts revealed in this case concerning the reach of
congressional power were predicated on the assumption that the information
required by the legislation being challenged concerned "acts not shown to be in,
or mingled with, or found to affect commerce." While the Court disposed of the
case by construing the statute narrowly, there seems little doubt thatHeart of
Atlanta goes beyond the dictum in Gambling Devices in its willingness in a

proper case to approve legislation declaring that certain activities affect

interstate commerce per se without requiring proof in each case.