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“In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency.” Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 472 (2001). It is well established that “Congress does not violate the Constitution merely because it legislates in broad terms, leaving a degree of discretion to executive and judicial actors.” Touby v. United States, 500 U.S. 160, 165 (1991). “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power’ . . . [T]his Court has deemed it ‘constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’” Mistretta v. United States, 488 U.S. 361, 372-73 (1989). The Supreme Court, having found the requisite “intelligible principle” lacking in only two statutes in its history, has “‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’” Whitman, 531 U.S. at 475.

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