In the case of Daniel Toubey et ux. v. United States (1990), the U.S. Supreme Court ruled that a provision in the Controlled Substances Act, which allowed temporary scheduling of drugs by the Attorney General without prior notice and hearing, did not violate due process rights under Fifth Amendment nor non-delegation doctrine principles. The Toubeys were convicted for manufacturing a drug temporarily classified as controlled substance under this provision and challenged its constitutionality on appeal. However, their argument was rejected by both lower courts and eventually by Supreme Court too which held that Congress had provided an intelligible principle to guide executive action i.e., preventing imminent hazard to public safety; thus satisfying non-delegation requirements while also providing post-scheduling judicial review option thereby meeting due process standards.

In the dissenting opinion for Touby v. United States, Justice Scalia argued that the Controlled Substances Act (CSA) unconstitutionally delegated legislative power to the Attorney General. He contended that Congress had failed to provide an "intelligible principle" to guide or limit this delegation of authority as required by previous Supreme Court rulings on non-delegation doctrine. The CSA allowed the Attorney General to temporarily schedule a substance if it posed an imminent hazard without defining what constitutes such a hazard, leaving too much discretion in his hands according to Scalia's interpretation. Furthermore, he disagreed with majority’s view that emergency scheduling was necessary given rapidly changing drug threats because there were other ways Congress could have addressed this problem while maintaining more control over lawmaking process.