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"Touby" or Not "Touby": The Constitutional Question When Congress Authorizes State and Local Governments to Legislate the Contours of Federal Criminal Law

January 2014

Citation: 44 ELR 10072

Issue: 1

Author: Darrell A. Fruth

Congress allows state and local governments to legislate federal criminal law. Violating some local ordinances, for example, constitutes a federal felony under the CWA. The U.S. Supreme Court has not yet decided how to review this type of delegation. Following the Court’s decision in Touby v. United States, most circuit courts apply a “meaningful constraint” test. Statutes that place meaningful, specific restrictions on the power to legislate federal criminal law do not violate the Constitution. The CWA fails this test. It criminalizes “any” violation of certain local pretreatment requirements, which the Act excludes from meaningful federal review. These provisions of the Act appear unconstitutional because they violate the nondelegation doctrine currently applied by most federal courts.

Darrell A. Fruth practices environmental law as a partner with Brooks, Pierce, McLendon, Humphrey & Leonard, LLP.

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