Constitutional Law Cases: Rehnquist Court
1986 - 1989
US Supreme Court
MISTRETTA v. UNITED STATES, 488 U.S. 361 (1989)
488 U.S. 361
MISTRETTA v. UNITED STATES
CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 87-7028.
Argued October 5, 1988
Decided January 18, 1989
Because the existing indeterminate sentencing system resulted in serious disparities
among the sentences imposed by federal judges upon similarly situated offenders and
in uncertainty as to an offender's actual date of release by Executive Branch parole
officials, Congress passed the Sentencing Reform Act of 1984 (Act), which, inter alia,
created the United States Sentencing Commission as an independent body in the Judicial
Branch with power to promulgate binding sentencing guidelines establishing a range
of determinate sentences for all categories of federal offenses and defendants according
to specific and detailed factors. The District Court upheld the constitutionality
of the Commission's resulting Guidelines against claims by petitioner Mistretta, who
was under indictment on three counts centering in a cocaine sale, that the Commission
was constituted in violation of the separation-of-powers principle, and that Congress
had delegated excessive authority to the Commission to structure the Guidelines. Mistretta
had pleaded guilty to a conspiracy-to-distribute count, was sentenced under the Guidelines
to 18 months' imprisonment and other penalties, and filed a notice of appeal. This
Court granted his petition and that of the United States for certiorari before judgment
in the Court of Appeals in order to consider the Guidelines' constitutionality.
Held:
The Sentencing Guidelines are constitutional, since Congress neither (1) delegated
excessive legislative power to the Commission nor (2) violated the separation-of-powers
principle by placing the Commission in the Judicial Branch, by requiring federal judges
to serve on the Commission and to share their authority with nonjudges, or by empowering
the President to appoint Commission members and to remove them for cause. The Constitution's
structural protections do not prohibit Congress from delegating to an expert body
within the Judicial Branch the intricate task of formulating sentencing guidelines
consistent with such significant statutory direction as is present here, nor from
calling upon the accumulated wisdom and experience of the Judicial Branch in creating
policy on a matter uniquely within the ken of judges. Pp. 371-412.
682 F. Supp. 1033, affirmed. [488 U.S. 361, 362]
BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and
WHITE, MARSHALL, STEVENS, O'CONNOR, and KENNEDY, JJ., joined, and in all but n. 11
of which BRENNAN, J., joined. SCALIA, J., filed a dissenting opinion, post, p. 413.
[ Footnote * ] Together with No. 87-1904, United States v. Mistretta, also on certiorari
before judgment to the same court.
Alan B. Morrison argued the cause for petitioner in No. 87-7028 and respondent in
No. 87-1904. With him on the briefs were Patti A. Goldman, Raymond C. Conrad, Jr.,
and Christopher C. Harlan.
Solicitor General Fried argued the cause for the United States in both cases. With
him on the brief were Assistant Attorney General Bolton, Deputy Solicitor General
Bryson, Paul J. Larkin, Jr., Douglas Letter, Gregory C. Sisk, and John F. De Pue.
Paul M. Bator argued the cause for the United States Sentencing Commission as amicus
curiae urging affirmance. With him on the brief were Andrew L. Frey, Kenneth S. Geller,
and John R. Steer.Fn
Fn [488 U.S. 361, 362] David O. Bickart filed a brief for Joseph E. DiGenova et al.
as amici curiae urging affirmance.
Briefs of amici curiae were filed for the United States Senate by Michael Davidson,
Ken U. Benjamin, Jr., and Morgan J. Frankel; and for the National Association of Criminal
Defense Lawyers by Benson B. Weintraub, Benedict P. Kuehne, and Dennis N. Balske.
JUSTICE BLACKMUN delivered the opinion of the Court.
In this litigation, we granted certiorari before judgment in the United States Court
of Appeals for the Eighth Circuit in order to consider the constitutionality of the
Sentencing Guidelines promulgated by the United States Sentencing Commission. The
Commission is a body created under the Sentencing Reform Act of 1984 (Act), as amended,
18 U.S.C. 3551 et seq. (1982 ed., Supp. IV), and 28 U.S.C. 991-998 (1982 ed., Supp.
IV). 1 The United States District Court for the Western District of Missouri ruled
that the Guidelines [488 U.S. 361, 363] were constitutional. United States v. Johnson,
682 F. Supp. 1033 (1988). 2
I
A
Background
For almost a century, the Federal Government employed in criminal cases a system
of indeterminate sentencing. Statutes specified the penalties for crimes but nearly
always gave the sentencing judge wide discretion to decide whether the offender should
be incarcerated and for how long, whether restraint, such as probation, should be
imposed instead of imprisonment or fine. This indeterminate-sentencing system was
supplemented by the utilization of parole, by which an offender was returned to society
under the "guidance and control" of a parole officer. See Zerbst v. Kidwell, 304 U.S.
359, 363 (1938).
Both indeterminate sentencing and parole were based on concepts of the offender's
possible, indeed probable, rehabilitation, a view that it was realistic to attempt
to rehabilitate the inmate and thereby to minimize the risk that he would resume criminal
activity upon his return to society. It obviously required the judge and the parole
officer to make their respective sentencing and release decisions upon their own assessments
of the offender's amenability to rehabilitation. As a result, the court and the officer
were in positions to exercise, and usually did exercise, very broad discretion. See
Kadish, The Advocate and the Expert - Counsel in the Peno-Correctional Process, 45
Minn. L. Rev. 803, 812-813 (1961). [488 U.S. 361, 364] This led almost inevitably
to the conclusion on the part of a reviewing court that the sentencing judge "sees
more and senses more" than the appellate court; thus, the judge enjoyed the "superiority
of his nether position," for that court's determination as to what sentence was appropriate
met with virtually unconditional deference on appeal. See Rosenberg, Judicial Discretion
of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 663 (1971). See Dorszynski
v. United States, 418 U.S. 424, 431 (1974). The decision whether to parole was also
"predictive and discretionary." Morrissey v. Brewer, 408 U.S. 471, 480 (1972). The
correction official possessed almost absolute discretion over the parole decision.
See, e. g., Brest v. Ciccone, 371 F.2d 981, 982-983 (CA8 1967); Rifai v. United States
Parole Comm'n, 586 F.2d 695 (CA9 1978).
Historically, federal sentencing - the function of determining the scope and extent
of punishment - never has been thought to be assigned by the Constitution to the exclusive
jurisdiction of any one of the three Branches of Government. Congress, of course,
has the power to fix the sentence for a federal crime, United States v. Wiltberger,
5 Wheat. 76 (1820), and the scope of judicial discretion with respect to a sentence
is subject to congressional control. Ex parte United States, 242 U.S. 27 (1916). Congress
early abandoned fixed-sentence rigidity, however, and put in place a system of ranges
within which the sentencer could choose the precise punishment. See United States
v. Grayson, 438 U.S. 41, 45 -46 (1978). Congress delegated almost unfettered discretion
to the sentencing judge to determine what the sentence should be within the customarily
wide range so selected. This broad discretion was further enhanced by the power later
granted the judge to suspend the sentence and by the resulting growth of an elaborate
probation system. Also, with the advent of parole, Congress moved toward a "three-way
sharing" of sentencing responsibility by granting corrections personnel in the Executive
Branch the discretion [488 U.S. 361, 365] to release a prisoner before the expiration
of the sentence imposed by the judge. Thus, under the indeterminate-sentence system,
Congress defined the maximum, the judge imposed a sentence within the statutory range
(which he usually could replace with probation), and the Executive Branch's parole
official eventually determined the actual duration of imprisonment. See Williams v.
New York, 337 U.S. 241, 248 (1949). See also Geraghty v. United States Parole Comm'n,
719 F.2d 1199, 1211 (CA3 1983), cert. denied, 465 U.S. 1103 (1984); United States
v. Addonizio, 442 U.S. 178, 190 (1979); United States v. Brown, 381 U.S. 437, 443
(1965) ("[I]f a given policy can be implemented only by a combination of legislative
enactment, judicial application, and executive implementation, no man or group of
men will be able to impose its unchecked will").
Serious disparities in sentences, however, were common. Rehabilitation as a sound
penological theory came to be questioned and, in any event, was regarded by some as
an unattainable goal for most cases. See N. Morris, The Future of Imprisonment 24-43
(1974); F. Allen, The Decline of the Rehabilitative Ideal (1981). In 1958, Congress
authorized the creation of judicial sentencing institutes and joint councils, see
28 U.S.C. 334, to formulate standards and criteria for sentencing. In 1973, the United
States Parole Board adopted guidelines that established a "customary range" of confinement.
See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 391 (1980). Congress in
1976 endorsed this initiative through the Parole Commission and Reorganization Act,
18 U.S.C. 4201-4218, an attempt to envision for the Parole Commission a role, at least
in part, "to moderate the disparities in the sentencing practices of individual judges."
United States v. Addonizio, 442 U.S., at 189 . That Act, however, did not disturb
the division of sentencing responsibility among the three Branches. The judge continued
to exercise discretion and to set the sentence within the statutory range fixed by
Congress, while the prisoner's [488 U.S. 361, 366] actual release date generally was
set by the Parole Commission.
This proved to be no more than a way station. Fundamental and widespread dissatisfaction
with the uncertainties and the disparities continued to be expressed. Congress had
wrestled with the problem for more than a decade when, in 1984, it enacted the sweeping
reforms that are at issue here.
Helpful in our consideration and analysis of the statute is the Senate Report on
the 1984 legislation, S. Rep. No. 98-225 (1983) (Report). 3 The Report referred to
the "outmoded rehabilitation model" for federal criminal sentencing, and recognized
that the efforts of the criminal justice system to achieve rehabilitation of offenders
had failed. Id., at 38. It observed that the indeterminate-sentencing system had two
"unjustifi[ed]" and "shameful" consequences. Id., at 38, 65. The first was the great
variation among sentences imposed by different judges upon similarly situated offenders.
The second was the uncertainty as to the time the offender would spend in prison.
Each was a serious impediment to an evenhanded and effective operation of the criminal
justice system. The Report went on to note that parole was an inadequate device for
overcoming these undesirable consequences. This was due to the division of authority
between the sentencing judge and the parole officer who often worked at cross purposes;
to the fact that the Parole Commission's own guidelines did not take into account
factors Congress regarded as important in sentencing, such as the sophistication of
the offender and the role the offender played in an offense committed with others,
id., at 48; and to the fact that the Parole Commission had only limited power to adjust
a sentence imposed by the court. Id., at 47. [488 U.S. 361, 367]
Before settling on a mandatory-guideline system, Congress considered other competing
proposals for sentencing reform. It rejected strict determinate sentencing because
it concluded that a guideline system would be successful in reducing sentence disparities
while retaining the flexibility needed to adjust for unanticipated factors arising
in a particular case. Id., at 78-79, 62. The Judiciary Committee rejected a proposal
that would have made the sentencing guidelines only advisory. Id., at 79.
B
The Act
The Act, as adopted, revises the old sentencing process in several ways:
1. It rejects imprisonment as a means of promoting rehabilitation, 28 U.S.C. 994(k),
and it states that punishment should serve retributive, educational, deterrent, and
incapacitative goals, 18 U.S.C. 3553(a)(2).
2. It consolidates the power that had been exercised by the sentencing judge and
the Parole Commission to decide what punishment an offender should suffer. This is
done by creating the United States Sentencing Commission, directing that Commission
to devise guidelines to be used for sentencing, and prospectively abolishing the Parole
Commission. 28 U.S.C. 991, 994, and 995(a)(1).
3. It makes all sentences basically determinate. A prisoner is to be released at
the completion of his sentence reduced only by any credit earned by good behavior
while in custody. 18 U.S.C. 3624(a) and (b).
4. It makes the Sentencing Commission's guidelines binding on the courts, although
it preserves for the judge the discretion to depart from the guideline applicable
to a particular case if the judge finds an aggravating or mitigating factor present
that the Commission did not adequately consider when formulating guidelines. 3553(a)
and (b). The Act also requires the court to state its reasons for the sentence [488
U.S. 361, 368] imposed and to give "the specific reason" for imposing a sentence different
from that described in the guideline. 3553(c).
5. It authorizes limited appellate review of the sentence. It permits a defendant
to appeal a sentence that is above the defined range, and it permits the Government
to appeal a sentence that is below that range. It also permits either side to appeal
an incorrect application of the guideline. 3742(a) and (b).
Thus, guidelines were meant to establish a range of determinate sentences for categories
of offenses and defendants according to various specified factors, "among others."
28 U.S.C. 994(b), (c), and (d). The maximum of the range ordinarily may not exceed
the minimum by more than the greater of 25% or six months, and each sentence is to
be within the limit provided by existing law. 994(a) and (b)(2).
C
The Sentencing Commission
The Commission is established "as an independent commission in the judicial branch
of the United States." 991(a). It has seven voting members (one of whom is the Chairman)
appointed by the President "by and with the advice and consent of the Senate." "At
least three of the members shall be Federal judges selected after considering a list
of six judges recommended to the President by the Judicial Conference of the United
States." Ibid. No more than four members of the Commission shall be members of the
same political party. The Attorney General, or his designee, is an ex officio nonvoting
member. The Chairman and other members of the Commission are subject to removal by
the President "only for neglect of duty or malfeasance in office or for other good
cause shown." Ibid. Except for initial staggering of terms, [488 U.S. 361, 369] a
voting member serves for six years and may not serve more than two full terms. 992(a)
and (b). 4
D
The Responsibilities of the Commission
In addition to the duty the Commission has to promulgate determinative-sentence guidelines,
it is under an obligation periodically to "review and revise" the guidelines. 994(o).
It is to "consult with authorities on, and individual and institutional representatives
of, various aspects of the Federal criminal justice system." Ibid. It must report
to Congress "any amendments of the guidelines." 994(p). It is to make recommendations
to Congress whether the grades or maximum penalties should be modified. 994(r). It
must submit to Congress at least annually an analysis of the operation of the guidelines.
994(w). It is to issue "general policy statements" regarding their application. 994(a)(2).
And it has the power to "establish general policies . . . as are necessary to carry
out the purposes" of the legislation, 995(a)(1); to "monitor the performance of probation
officers" with respect to the guidelines, 995(a)(9); to "devise and conduct periodic
training programs of instruction in sentencing techniques for judicial and probation
personnel" and others, 995(a)(18); and to "perform such other functions as are required
to permit Federal courts to meet their responsibilities" as to sentencing, 995(a)(22).
We note, in passing, that the monitoring function is not without its burden. Every
year, with respect to each of more than 40,000 sentences, the federal courts must
forward, and the Commission must review, the presentence report, [488 U.S. 361, 370]
the guideline worksheets, the tribunal's sentencing statement, and any written plea
agreement.
II
This Litigation
On December 10, 1987, John M. Mistretta (petitioner) and another were indicted in
the United States District Court for the Western District of Missouri on three counts
centering in a cocaine sale. See App. to Pet. for Cert. in No. 87-1904, p. 16a. Mistretta
moved to have the promulgated Guidelines ruled unconstitutional on the grounds that
the Sentencing Commission was constituted in violation of the established doctrine
of separation of powers, and that Congress delegated excessive authority to the Commission
to structure the Guidelines. As has been noted, the District Court was not persuaded
by these contentions. 5
The District Court rejected petitioner's delegation argument on the ground that,
despite the language of the statute, the Sentencing Commission "should be judicially
characterized as having Executive Branch status," 682 F. Supp., at 1035, and that
the Guidelines are similar to substantive rules promulgated by other agencies. Id.,
at 1034-1035. The court also rejected petitioner's claim that the Act is unconstitutional
because it requires Article III federal judges to serve on the Commission. Id., at
1035. The court stated, however, that its opinion "does not imply that I have no serious
doubts about some parts of the Sentencing Guidelines and the legality of their anticipated
operation." Ibid.
Petitioner had pleaded guilty to the first count of his indictment (conspiracy and
agreement to distribute cocaine, in violation of 21 U.S.C. 846 and 841(b)(1)(B)).
The Government thereupon moved to dismiss the remaining counts. [488 U.S. 361, 371]
That motion was granted. App. to Pet. for Cert. in No. 87-1904, p. 33a. Petitioner
was sentenced under the Guidelines to 18 months' imprisonment, to be followed by a
3-year term of supervised release. Id., at 30a, 35a, 37a. The court also imposed a
$1,000 fine and a $50 special assessment. Id., at 31a, 40a.
Petitioner filed a notice of appeal to the Eighth Circuit, but both petitioner and
the United States, pursuant to this Court's Rule 18, petitioned for certiorari before
judgment. Because of the "imperative public importance" of the issue, as prescribed
by the Rule, and because of the disarray among the Federal District Courts, 6 we granted
those petitions. 486 U.S. 1054 (1988).
III
Delegation of Power
Petitioner argues that in delegating the power to promulgate sentencing guidelines
for every federal criminal offense to an independent Sentencing Commission, Congress
has granted the Commission excessive legislative discretion in violation of the constitutionally
based nondelegation doctrine. We do not agree.
The nondelegation doctrine is rooted in the principle of separation of powers that
underlies our tripartite system of Government. The Constitution provides that "[a]ll
legislative Powers herein granted shall be vested in a Congress of the United States,"
U.S. Const., Art. I, 1, and we long have insisted that "the integrity and maintenance
of [488 U.S. 361, 372] the system of government ordained by the Constitution" mandate
that Congress generally cannot delegate its legislative power to another Branch. Field
v. Clark, 143 U.S. 649, 692 (1892). We also have recognized, however, that the separation-of-powers
principle, and the nondelegation doctrine in particular, do not prevent Congress from
obtaining the assistance of its coordinate Branches. In a passage now enshrined in
our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach
to such cooperative ventures: "In determining what [Congress] may do in seeking assistance
from another branch, the extent and character of that assistance must be fixed according
to common sense and the inherent necessities of the government co-ordination." J.
W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928). 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." Id., at 409.
Applying this "intelligible principle" test to congressional delegations, our jurisprudence
has been driven by a practical understanding that in our increasingly complex society,
replete with ever changing and more technical problems, Congress simply cannot do
its job absent an ability to delegate power under broad general directives. See Opp
Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of Labor, 312 U.S.
126, 145 (1941) ("In an increasingly complex society Congress obviously could not
perform its functions if it were obliged to find all the facts subsidiary to the basic
conclusions which support the defined legislative policy"); see also United States
v. Robel, 389 U.S. 258, 274 (1967) (opinion concurring in result). "The Constitution
has never been regarded as denying to the Congress the necessary resources of flexibility
and practicality, which will enable it to perform its function." Panama Refining Co.
v. Ryan, 293 U.S. 388, 421 (1935). Accordingly, this Court has deemed it "constitutionally
sufficient if Congress clearly [488 U.S. 361, 373] delineates the general policy,
the public agency which is to apply it, and the boundaries of this delegated authority."
American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).
Until 1935, this Court never struck down a challenged statute on delegation grounds.
See Synar v. United States, 626 F. Supp. 1374, 1383 (DC) (three-judge court), aff'd
sub nom. Bowsher v. Synar, 478 U.S. 714 (1986). After invalidating in 1935 two statutes
as excessive delegations, see A. L. A. Schechter Poultry Corp. v. United States, 295
U.S. 495 , and Panama Refining Co. v. Ryan, supra, we have upheld, again without deviation,
Congress' ability to delegate power under broad standards. 7 See, e. g., Lichter v.
United States, 334 U.S. 742, 785 -786 (1948) (upholding delegation of authority to
determine excessive profits); American Power & Light Co. v. SEC, 329 U.S., at 105
(upholding delegation of authority to Securities and Exchange Commission to prevent
unfair or inequitable distribution of voting power among security holders); Yakus
v. United States, 321 U.S. 414, 426 (1944) (upholding delegation to Price Administrator
to fix commodity prices that would be fair and equitable, and would effectuate purposes
of Emergency Price Control Act of 1942); FPC v. Hope Natural Gas Co., 320 U.S. 591,
600 (1944) (upholding delegation to Federal Power Commission to determine [488 U.S.
361, 374] just and reasonable rates); National Broadcasting Co. v. United States,
319 U.S. 190, 225 -226 (1943) (upholding delegation to Federal Communications Commission
to regulate broadcast licensing "as public interest, convenience, or necessity" require).
In light of our approval of these broad delegations, we harbor no doubt that Congress'
delegation of authority to the Sentencing Commission is sufficiently specific and
detailed to meet constitutional requirements. Congress charged the Commission with
three goals: to "assure the meeting of the purposes of sentencing as set forth" in
the Act; to "provide certainty and fairness in meeting the purposes of sentencing,
avoiding unwarranted sentencing disparities among defendants with similar records
. . . while maintaining sufficient flexibility to permit individualized sentences,"
where appropriate; and to "reflect, to the extent practicable, advancement in knowledge
of human behavior as it relates to the criminal justice process." 28 U.S.C. 991(b)(1).
Congress further specified four "purposes" of sentencing that the Commission must
pursue in carrying out its mandate: "to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense"; "to
afford adequate deterrence to criminal conduct"; "to protect the public from further
crimes of the defendant"; and "to provide the defendant with needed . . . correctional
treatment." 18 U.S.C. 3553(a)(2).
In addition, Congress prescribed the specific tool - the guidelines system - for
the Commission to use in regulating sentencing. More particularly, Congress directed
the Commission to develop a system of "sentencing ranges" applicable "for each category
of offense involving each category of defendant." 28 U.S.C. 994(b). 8 Congress instructed
the [488 U.S. 361, 375] Commission that these sentencing ranges must be consistent
with pertinent provisions of Title 18 of the United States Code and could not include
sentences in excess of the statutory maxima. Congress also required that for sentences
of imprisonment, "the maximum of the range established for such a term shall not exceed
the minimum of that range by more than the greater of 25 percent or 6 months, except
that, if the minimum term of the range is 30 years or more, the maximum may be life
imprisonment." 994(b)(2). Moreover, Congress directed the Commission to use current
average sentences "as a starting point" for its structuring of the sentencing ranges.
994(m).
To guide the Commission in its formulation of offense categories, Congress directed
it to consider seven factors: the grade of the offense; the aggravating and mitigating
circumstances of the crime; the nature and degree of the harm caused by the crime;
the community view of the gravity of the offense; the public concern generated by
the crime; the deterrent effect that a particular sentence may have on others; and
the current incidence of the offense. 994(c)(1)(7). 9 Congress set forth 11 factors
for the Commission to [488 U.S. 361, 376] consider in establishing categories of defendants.
These include the offender's age, education, vocational skills, mental and emotional
condition, physical condition (including drug dependence), previous employment record,
family ties and responsibilities, community ties, role in the offense, criminal history,
and degree of dependence upon crime for a livelihood. 994(d)(1)-(11). 10 Congress
also prohibited the Commission from considering the "race, sex, national origin, creed,
and socioeconomic status of offenders," 994(d), and instructed that the guidelines
should reflect the "general inappropriateness" of considering certain other factors,
such as current unemployment, that might serve as proxies for forbidden factors, 994(e).
In addition to these overarching constraints, Congress provided even more detailed
guidance to the Commission about categories of offenses and offender characteristics.
Congress directed that guidelines require a term of confinement at or near the statutory
maximum for certain crimes of violence and for drug offenses, particularly when committed
by recidivists. 994(h). Congress further directed that the Commission assure a substantial
term of imprisonment for an offense constituting a third felony conviction, for a
career [488 U.S. 361, 377] felon, for one convicted of a managerial role in a racketeering
enterprise, for a crime of violence by an offender on release from a prior felony
conviction, and for an offense involving a substantial quantity of narcotics. 994(i).
Congress also instructed "that the guidelines reflect . . . the general appropriateness
of imposing a term of imprisonment" for a crime of violence that resulted in serious
bodily injury. On the other hand, Congress directed that guidelines reflect the general
inappropriateness of imposing a sentence of imprisonment "in cases in which the defendant
is a first offender who has not been convicted of a crime of violence or an otherwise
serious offense." 994(j). Congress also enumerated various aggravating and mitigating
circumstances, such as, respectively, multiple offenses or substantial assistance
to the Government, to be reflected in the guidelines. 994(l) and (n). In other words,
although Congress granted the Commission substantial discretion in formulating guidelines,
in actuality it legislated a full hierarchy of punishment - from near maximum imprisonment,
to substantial imprisonment, to some imprisonment, to alternatives - and stipulated
the most important offense and offender characteristics to place defendants within
these categories.
We cannot dispute petitioner's contention that the Commission enjoys significant
discretion in formulating guidelines. The Commission does have discretionary authority
to determine the relative severity of federal crimes and to assess the relative weight
of the offender characteristics that Congress listed for the Commission to consider.
See 994(c) and (d) (Commission instructed to consider enumerated factors as it deems
them to be relevant). The Commission also has significant discretion to determine
which crimes have been punished too leniently, and which too severely. 994(m). Congress
has called upon the Commission to exercise its judgment about which types of crimes
and which [488 U.S. 361, 378] types of criminals are to be considered similar for
the purposes of sentencing. 11
But our cases do not at all suggest that delegations of this type may not carry with
them the need to exercise judgment on matters of policy. In Yakus v. United States,
321 U.S. 414 (1944), the Court upheld a delegation to the Price Administrator to fix
commodity prices that "in his judgment will be generally fair and equitable and will
effectuate the purposes of this Act" to stabilize prices and avert speculation. See
id., at 420. In National Broadcasting Co. v. United States, 319 U.S. 190 (1943), we
upheld a delegation to the Federal Communications Commission granting it the authority
to promulgate regulations in accordance with its view of the "public interest." In
Yakus, the Court laid down the applicable principle:
"It is no objection that the determination of facts and the inferences to be drawn
from them in the light of the statutory standards and declaration of policy call for
the exercise [488 U.S. 361, 379] of judgment, and for the formulation of subsidiary
administrative policy within the prescribed statutory framework. . . .
. . . . .
". . . Only if we could say that there is an absence of standards for the guidance
of the Administrator's action, so that it would be impossible in a proper proceeding
to ascertain whether the will of Congress has been obeyed, would we be justified in
overriding its choice of means for effecting its declared purpose . . . ." 321 U.S.,
at 425 -426.
Congress has met that standard here. The Act sets forth more than merely an "intelligible
principle" or minimal standards. One court has aptly put it: "The statute outlines
the policies which prompted establishment of the Commission, explains what the Commission
should do and how it should do it, and sets out specific directives to govern particular
situations." United States v. Chambless, 680 F. Supp. 793, 796 (ED La. 1988).
Developing proportionate penalties for hundreds of different crimes by a virtually
limitless array of offenders is precisely the sort of intricate, labor-intensive task
for which delegation to an expert body is especially appropriate. Although Congress
has delegated significant discretion to the Commission to draw judgments from its
analysis of existing sentencing practice and alternative sentencing models, "Congress
is not confined to that method of executing its policy which involves the least possible
delegation of discretion to administrative officers." Yakus v. United States, 321
U.S., at 425 -426. We have no doubt that in the hands of the Commission "the criteria
which Congress has supplied are wholly adequate for carrying out the general policy
and purpose" of the Act. Sunshine Coal Co. v. Adkins, 310 U.S. 381, 398 (1940). [488
U.S. 361, 380]
IV
Separation of Powers
Having determined that Congress has set forth sufficient standards for the exercise
of the Commission's delegated authority, we turn to Mistretta's claim that the Act
violates the constitutional principle of separation of powers.
This Court consistently has given voice to, and has reaffirmed, the central judgment
of the Framers of the Constitution that, within our political scheme, the separation
of governmental powers into three coordinate Branches is essential to the preservation
of liberty. See, e. g., Morrison v. Olson, 487 U.S. 654, 685 -696 (1988); Bowsher
v. Synar, 478 U.S., at 725 . Madison, in writing about the principle of separated
powers, said: "No political truth is certainly of greater intrinsic value or is stamped
with the authority of more enlightened patrons of liberty." The Federalist No. 47,
p. 324 (J. Cooke ed. 1961).
In applying the principle of separated powers in our jurisprudence, we have sought
to give life to Madison's view of the appropriate relationship among the three coequal
Branches. Accordingly, we have recognized, as Madison admonished at the founding,
that while our Constitution mandates that "each of the three general departments of
government [must remain] entirely free from the control or coercive influence, direct
or indirect, of either of the others," Humphrey's Executor v. United States, 295 U.S.
602, 629 (1935), the Framers did not require - and indeed rejected - the notion that
the three Branches must be entirely separate and distinct. See, e. g., Nixon v. Administrator
of General Services, 433 U.S. 425, 443 (1977) (rejecting as archaic complete division
of authority among the three Branches); United States v. Nixon, 418 U.S. 683 (1974)
(affirming Madison's flexible approach to separation of powers). Madison, defending
the Constitution against charges that it established insufficiently separate Branches,
addressed the point directly. Separation of powers, he wrote, "d[oes] not mean that
these [three] [488 U.S. 361, 381] departments ought to have no partial agency in,
or no controul over the acts of each other," but rather "that where the whole power
of one department is exercised by the same hands which possess the whole power of
another department, the fundamental principles of a free constitution, are subverted."
The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) (emphasis in original). See
Nixon v. Administrator of General Services, 433 U.S., at 442 , n. 5. Madison recognized
that our constitutional system imposes upon the Branches a degree of overlapping responsibility,
a duty of interdependence as well as independence the absence of which "would preclude
the establishment of a Nation capable of governing itself effectively." Buckley v.
Valeo, 424 U.S. 1, 121 (1976). In a passage now commonplace in our cases, Justice
Jackson summarized the pragmatic, flexible view of differentiated governmental power
to which we are heir:
"While the Constitution diffuses power the better to secure liberty, it also contemplates
that practice will integrate the dispersed powers into a workable government. It enjoins
upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion).
In adopting this flexible understanding of separation of powers, we simply have recognized
Madison's teaching that the greatest security against tyranny - the accumulation of
excessive authority in a single Branch - lies not in a hermetic division among the
Branches, but in a carefully crafted system of checked and balanced power within each
Branch. "[T]he greatest security," wrote Madison, "against a gradual concentration
of the several powers in the same department, consists in giving to those who administer
each department, the necessary constitutional means, and personal motives, to resist
encroachments of the others." The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Accordingly,
as we have noted [488 U.S. 361, 382] many times, the Framers "built into the tripartite
Federal Government . . . a self-executing safeguard against the encroachment or aggrandizement
of one branch at the expense of the other." Buckley v. Valeo, 424 U.S., at 122 . See
also INS v. Chadha, 462 U.S. 919, 951 (1983).
It is this concern of encroachment and aggrandizement that has animated our separation-of-powers
jurisprudence and aroused our vigilance against the "hydraulic pressure inherent within
each of the separate Branches to exceed the outer limits of its power." Ibid. Accordingly,
we have not hesitated to strike down provisions of law that either accrete to a single
Branch powers more appropriately diffused among separate Branches or that undermine
the authority and independence of one or another coordinate Branch. For example, just
as the Framers recognized the particular danger of the Legislative Branch's accreting
to itself judicial or executive power, 12 so too have we invalidated attempts by Congress
to exercise the responsibilities of other Branches or to reassign powers vested by
the Constitution in either the Judicial Branch or the Executive Branch. Bowsher v.
Synar, 478 U.S. 714 (1986) (Congress may not exercise removal power over officer performing
executive functions); INS v. Chadha, supra (Congress may not control execution of
laws except through Art. I procedures); Northern Pipeline Construction Co. v. Marathon
Pipe Line Co., 458 U.S. 50 (1982) (Congress may not confer Art. III power on Art.
I judge). By the same token, we have upheld statutory provisions that to some degree
commingle the functions of the Branches, but that pose no danger of either aggrandizement
or encroachment. Morrison v. Olson, 487 U.S. 654 (1988) (upholding judicial appointment
of independent counsel); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986)
(upholding [488 U.S. 361, 383] agency's assumption of jurisdiction over state-law
counterclaims).
In Nixon v. Administrator of General Services, supra, upholding, against a separation-of-powers
challenge, legislation providing for the General Services Administration to control
Presidential papers after resignation, we described our separation-of-powers inquiry
as focusing "on the extent to which [a provision of law] prevents the Executive Branch
from accomplishing its constitutionally assigned functions." 433 U.S., at 443 (citing
United States v. Nixon, 418 U.S., at 711 -712. 13 In cases specifically involving
the Judicial Branch, we have expressed our vigilance against two dangers: first, that
the Judicial Branch neither be assigned nor allowed "tasks that are more properly
accomplished by [other] branches," Morrison v. Olson, 487 U.S., at 680 -681, and,
second, that no provision of law "impermissibly threatens the institutional integrity
of the Judicial Branch." Commodity Futures Trading Comm'n v. Schor, 478 U.S., at 851
.
Mistretta argues that the Act suffers from each of these constitutional infirmities.
He argues that Congress, in constituting the Commission as it did, effected an unconstitutional
accumulation of power within the Judicial Branch while at the same time undermining
the Judiciary's independence and integrity. Specifically, petitioner claims that in
delegating to an independent agency within the Judicial Branch the power to promulgate
sentencing guidelines, Congress unconstitutionally has required the Branch, and individual
Article III judges, to exercise not only their judicial authority, but legislative
authority - the making of sentencing policy - as well. Such rulemaking authority,
petitioner contends, may be exercised by Congress, or delegated by Congress to the
[488 U.S. 361, 384] Executive, but may not be delegated to or exercised by the Judiciary.
Brief for Petitioner 21.
At the same time, petitioner asserts, Congress unconstitutionally eroded the integrity
and independence of the Judiciary by requiring Article III judges to sit on the Commission,
by requiring that those judges share their rulemaking authority with nonjudges, and
by subjecting the Commission's members to appointment and removal by the President.
According to petitioner, Congress, consistent with the separation of powers, may not
upset the balance among the Branches by co-opting federal judges into the quintessentially
political work of establishing sentencing guidelines, by subjecting those judges to
the political whims of the Chief Executive, and by forcing judges to share their power
with nonjudges. Id., at 15-35.
"When this Court is asked to invalidate a statutory provision that has been approved
by both Houses of the Congress and signed by the President, particularly an Act of
Congress that confronts a deeply vexing national problem, it should only do so for
the most compelling constitutional reasons." Bowsher v. Synar, 478 U.S., at 736 (opinion
concurring in judgment). Although the unique composition and responsibilities of the
Sentencing Commission give rise to serious concerns about a disruption of the appropriate
balance of governmental power among the coordinate Branches, we conclude, upon close
inspection, that petitioner's fears for the fundamental structural protections of
the Constitution prove, at least in this case, to be "more smoke than fire," and do
not compel us to invalidate Congress' considered scheme for resolving the seemingly
intractable dilemma of excessive disparity in criminal sentencing.
A
Location of the Commission
The Sentencing Commission unquestionably is a peculiar institution within the framework
of our Government. Although placed by the Act in the Judicial Branch, it is not a
[488 U.S. 361, 385] court and does not exercise judicial power. Rather, the Commission
is an "independent" body comprised of seven voting members including at least three
federal judges, entrusted by Congress with the primary task of promulgating sentencing
guidelines. 28 U.S.C. 991(a). Our constitutional principles of separated powers are
not violated, however, by mere anomaly or innovation. Setting to one side, for the
moment, the question whether the composition of the Sentencing Commission violates
the separation of powers, we observe that Congress' decision to create an independent
rulemaking body to promulgate sentencing guidelines and to locate that body within
the Judicial Branch is not unconstitutional unless Congress has vested in the Commission
powers that are more appropriately performed by the other Branches or that undermine
the integrity of the Judiciary.
According to express provision of Article III, the judicial power of the United States
is limited to "Cases" and "Controversies." See Muskrat v. United States, 219 U.S.
346, 356 (1911). In implementing this limited grant of power, we have refused to issue
advisory opinions or to resolve disputes that are not justiciable. See, e. g., Flast
v. Cohen, 392 U.S. 83 (1968); United States v. Ferreira, 13 How. 40 (1852). These
doctrines help to ensure the independence of the Judicial Branch by precluding debilitating
entanglements between the Judiciary and the two political Branches, and prevent the
Judiciary from encroaching into areas reserved for the other Branches by extending
judicial power to matters beyond those disputes "traditionally thought to be capable
of resolution through the judicial process." Flast v. Cohen, 392 U.S., at 97 ; see
also United States Parole Comm'n v. Geraghty, 445 U.S., at 396 . As a general principle,
we stated as recently as last Term that "`executive or administrative duties of a
nonjudicial nature may not be imposed on judges holding office under Art. III of the
Constitution.'" Morrison v. Olson, 487 U.S., at 677 , quoting Buckley v. Valeo, 424
U.S., at 123 , citing in turn United States v. Ferreira, supra, and Hayburn's Case,
2 Dall. 409 (1792). [488 U.S. 361, 386]
Nonetheless, we have recognized significant exceptions to this general rule and have
approved the assumption of some nonadjudicatory activities by the Judicial Branch.
In keeping with Justice Jackson's Youngstown admonition that the separation of powers
contemplates the integration of dispersed powers into a workable Government, we have
recognized the constitutionality of a "twilight area" in which the activities of the
separate Branches merge. In his dissent in Myers v. United States, 272 U.S. 52 (1926),
Justice Brandeis explained that the separation of powers "left to each [Branch] power
to exercise, in some respects, functions in their nature executive, legislative and
judicial." Id., at 291.
That judicial rulemaking, at least with respect to some subjects, falls within this
twilight area is no longer an issue for dispute. None of our cases indicate that rulemaking
per se is a function that may not be performed by an entity within the Judicial Branch,
either because rulemaking is inherently nonjudicial or because it is a function exclusively
committed to the Executive Branch. 14 On the contrary, we specifically [488 U.S. 361,
387] have held that Congress, in some circumstances, may confer rulemaking authority
on the Judicial Branch. In Sibbach v. Wilson & Co., 312 U.S. 1 (1941), we upheld a
challenge to certain rules promulgated under the Rules Enabling Act of 1934, which
conferred upon the Judiciary the power to promulgate federal rules of civil procedure.
See 28 U.S.C. 2072. We observed: "Congress has undoubted power to regulate the practice
and procedure of federal courts, and may exercise that power by delegating to this
or other federal courts authority to make rules not inconsistent with the statutes
or constitution of the United States." 312 U.S., at 9 -10 (footnote omitted). This
passage in Sibbach simply echoed what had been our view since Wayman v. Southard,
10 Wheat. 1, 43 (1825), decided more than a century earlier, where Chief Justice Marshall
wrote for the Court that rulemaking power pertaining to the Judicial Branch may be
"conferred on the judicial department." Discussing this delegation of rulemaking power,
the Court found Congress authorized
"to make all laws which shall be necessary and proper for carrying into execution
the foregoing powers, and all other powers vested by this constitution in the government
of the United States, or in any department or officer thereof. The judicial department
is invested with jurisdiction in certain specified cases, in all which it has power
to render judgment. [488 U.S. 361, 388]
"That a power to make laws for carrying into execution all the judgments which the
judicial department has power to pronounce, is expressly conferred by this clause,
seems to be one of those plain propositions which reasoning cannot render plainer."
Id., at 22.
See also Hanna v. Plumer, 380 U.S. 460 (1965). Pursuant to this power to delegate
rulemaking authority to the Judicial Branch, Congress expressly has authorized this
Court to establish rules for the conduct of its own business and to prescribe rules
of procedure for lower federal courts in bankruptcy cases, in other civil cases, and
in criminal cases, and to revise the Federal Rules of Evidence. See generally J. Weinstein,
Reform of Court Rule-Making Procedures (1977).
Our approach to other nonadjudicatory activities that Congress has vested either
in federal courts or in auxiliary bodies within the Judicial Branch has been identical
to our approach to judicial rulemaking: consistent with the separation of powers,
Congress may delegate to the Judicial Branch nonadjudicatory functions that do not
trench upon the prerogatives of another Branch and that are appropriate to the central
mission of the Judiciary. Following this approach, we specifically have upheld not
only Congress' power to confer on the Judicial Branch the rulemaking authority contemplated
in the various enabling Acts, but also to vest in judicial councils authority to "make
`all necessary orders for the effective and expeditious administration of the business
of the courts.'" Chandler v. Judicial Council, 398 U.S. 74, 86 , n. 7 (1970), quoting
28 U.S.C. 332 (1970 ed.). Though not the subject of constitutional challenge, by established
practice we have recognized Congress' power to create the Judicial Conference of the
United States, the Rules Advisory Committees that it oversees, and the Administrative
Office of the United States Courts whose myriad responsibilities [488 U.S. 361, 389]
include the administration of the entire probation service. 15 These entities, some
of which are comprised of judges, others of judges and nonjudges, still others of
nonjudges only, do not exercise judicial power in the constitutional sense of deciding
cases and controversies, but they share the common purpose of providing for the fair
and efficient fulfillment of responsibilities that are properly the province of the
Judiciary. Thus, although the judicial power of the United States is limited by express
provision of Article III to "Cases" and "Controversies," we have never held, and have
clearly disavowed in practice, that the Constitution prohibits Congress from assigning
to courts or auxiliary bodies within the Judicial Branch administrative or rulemaking
duties that, in the words of Chief Justice Marshall, are "necessary and proper . .
. for carrying into execution all the judgments which the judicial department has
power to pronounce." Wayman v. Southard, 10 Wheat., at 22. 16 Because of their [488
U.S. 361, 390] close relation to the central mission of the Judicial Branch, such
extrajudicial activities are consonant with the integrity of the Branch and are not
more appropriate for another Branch.
In light of this precedent and practice, we can discern no separation-of-powers impediment
to the placement of the Sentencing Commission within the Judicial Branch. As we described
at the outset, the sentencing function long has been a peculiarly shared responsibility
among the Branches of Government and has never been thought of as the exclusive constitutional
province of any one Branch. See, e. g., United States v. Addonizio, 442 U.S., at 188
-189. For more than a century, federal judges have enjoyed wide discretion to determine
the appropriate sentence in individual cases and have exercised special authority
to determine the sentencing factors to be applied in any given case. Indeed, the legislative
history of the Act makes clear that Congress' decision to place the Commission within
the Judicial Branch reflected Congress' "strong feeling" that sentencing has been
and should remain "primarily a judicial function." Report, at 159. That Congress should
vest such rulemaking in the Judicial Branch, far from being "incongruous" or vesting
within the Judiciary responsibilities that more appropriately belong to another Branch,
simply acknowledges the role that [488 U.S. 361, 391] the Judiciary always has played,
and continues to play, in sentencing. 17
Given the consistent responsibility of federal judges to pronounce sentence within
the statutory range established by Congress, we find that the role of the Commission
in promulgating guidelines for the exercise of that judicial function bears considerable
similarity to the role of this Court in establishing rules of procedure under the
various enabling Acts. Such guidelines, like the Federal Rules of Criminal and Civil
Procedure, are court rules - rules, to paraphrase Chief Justice Marshall's language
in Wayman, for carrying into execution judgments that the Judiciary has the power
to pronounce. Just as the rules of procedure bind judges and courts in the proper
management of the cases before them, so the Guidelines bind judges and courts in the
exercise of their uncontested responsibility to pass sentence in criminal cases. In
other words, the Commission's functions, like this Court's function in promulgating
procedural rules, are clearly attendant to a central element of the historically acknowledged
mission of the Judicial Branch.
Petitioner nonetheless objects that the analogy between the Guidelines and the rules
of procedure is flawed: Although the Judicial Branch may participate in rulemaking
and administrative work that is "procedural" in nature, it may not assume, it is said,
the "substantive" authority over sentencing [488 U.S. 361, 392] policy that Congress
has delegated to the Commission. Such substantive decisionmaking, petitioner contends,
entangles the Judicial Branch in essentially political work of the other Branches
and unites both judicial and legislative power in the Judicial Branch.
We agree with petitioner that the nature of the Commission's rulemaking power is
not strictly analogous to this Court's rulemaking power under the enabling Acts. Although
we are loath to enter the logical morass of distinguishing between substantive and
procedural rules, see Sun Oil Co. v. Wortman, 486 U.S. 717 (1988) (distinction between
substance and procedure depends on context), and although we have recognized that
the Federal Rules of Civil Procedure regulate matters "falling within the uncertain
area between substance and procedure, [and] are rationally capable of classification
as either," Hanna v. Plumer, 380 U.S., at 472 , we recognize that the task of promulgating
rules regulating practice and pleading before federal courts does not involve the
degree of political judgment integral to the Commission's formulation of sentencing
guidelines. 18 To be sure, all rulemaking is nonjudicial in the sense that rules impose
standards of general application divorced from the individual fact situation which
ordinarily forms the predicate for judicial action. Also, this Court's rulemaking
under the enabling Acts has been substantive and political in the sense that the rules
of procedure have important effects on the substantive rights of litigants. 19 Nonetheless,
the degree of [488 U.S. 361, 393] political judgment about crime and criminality exercised
by the Commission and the scope of the substantive effects of its work does to some
extent set its rulemaking powers apart from prior judicial rulemaking. Cf. Miller
v. Florida, 482 U.S. 423 (1987) (state sentencing guidelines not procedural).
We do not believe, however, that the significantly political nature of the Commission's
work renders unconstitutional its placement within the Judicial Branch. Our separation-of-powers
analysis does not turn on the labeling of an activity as "substantive" as opposed
to "procedural," or "political" as opposed to "judicial." See Bowsher v. Synar, 478
U.S., at 749 ("[G]overnmental power cannot always be readily characterized with only
one . . . labe[l]") (opinion concurring in judgment). Rather, our inquiry is focused
on the "unique aspects of the congressional plan at issue and its practical consequences
in light of the larger concerns that underlie Article III." Commodity Futures Trading
Comm'n v. Schor, 478 U.S., at 857 . In this case, the "practical consequences" of
locating the Commission within the Judicial Branch pose no threat of undermining the
integrity of the Judicial Branch or of expanding the powers of the Judiciary beyond
constitutional bounds by uniting within the Branch the political or quasi-legislative
power of the Commission with the judicial power of the courts.
First, although the Commission is located in the Judicial Branch, its powers are
not united with the powers of the Judiciary in a way that has meaning for separation-of-powers
analysis. Whatever constitutional problems might arise if the powers of the Commission
were vested in a court, the Commission is not a court, does not exercise judicial
power, and is not controlled by or accountable to members of the Judicial Branch.
The Commission, on which members of the Judiciary may be a minority, is an independent
agency in every relevant sense. In contrast to a court's exercising judicial power,
the Commission is fully accountable to Congress, which can revoke or amend any or
all of the Guidelines [488 U.S. 361, 394] as it sees fit either within the 180-day
waiting period, see 235(a)(1)(B)(ii)(III) of the Act, 98 Stat. 2032, or at any time.
In contrast to a court, the Commission's members are subject to the President's limited
powers of removal. In contrast to a court, its rulemaking is subject to the notice
and comment requirements of the Administrative Procedure Act, 28 U.S.C. 994(x). While
we recognize the continuing vitality of Montesquieu's admonition: "`Were the power
of judging joined with the legislative, the life and liberty of the subject would
be exposed to arbitrary controul,'" The Federalist No. 47, p. 326 (J. Cooke ed. 1961)
(Madison), quoting Montesquieu, because Congress vested the power to promulgate sentencing
guidelines in an independent agency, not a court, there can be no serious argument
that Congress combined legislative and judicial power within the Judicial Branch.
20 [488 U.S. 361, 395]
Second, although the Commission wields rulemaking power and not the adjudicatory
power exercised by individual judges when passing sentence, the placement of the Sentencing
Commission in the Judicial Branch has not increased the Branch's authority. Prior
to the passage of the Act, the Judicial Branch, as an aggregate, decided precisely
the questions assigned to the Commission: what sentence is appropriate to what criminal
conduct under what circumstances. It was the everyday business of judges, taken collectively,
to evaluate and weigh the various aims of sentencing and to apply those aims to the
individual cases that came before them. The Sentencing Commission does no more than
this, albeit basically through the methodology of sentencing guidelines, rather than
entirely individualized sentencing determinations. Accordingly, in placing the Commission
in the Judicial Branch, Congress cannot be said to have aggrandized the authority
of that Branch or to have deprived the Executive Branch of a power it once possessed.
Indeed, because the Guidelines have the effect of promoting sentencing within a narrower
range than was previously applied, the power of the Judicial Branch is, if anything,
somewhat diminished by the Act. And, since Congress did not unconstitutionally delegate
its own authority, the Act does not unconstitutionally diminish Congress' authority.
Thus, although Congress has authorized the Commission to exercise a greater degree
of political judgment than has been exercised in the past by any one entity within
the Judicial Branch, in the unique context of sentencing, this authorization does
nothing to upset the balance of power among the Branches.
What Mistretta's argument comes down to, then, is not that the substantive responsibilities
of the Commission aggrandize the Judicial Branch, but that that Branch is inevitably
weakened by its participation in policymaking. We do not believe, however, that the
placement within the Judicial [488 U.S. 361, 396] Branch of an independent agency
charged with the promulgation of sentencing guidelines can possibly be construed as
preventing the Judicial Branch "from accomplishing its constitutionally assigned functions."
Nixon v. Administrator of General Services, 433 U.S., at 443 . Despite the substantive
nature of its work, the Commission is not incongruous or inappropriate to the Branch.
As already noted, sentencing is a field in which the Judicial Branch long has exercised
substantive or political judgment. What we said in Morrison when upholding the power
of the Special Division to appoint independent counsel applies with even greater force
here: "This is not a case in which judges are given power . . . in an area in which
they have no special knowledge or expertise." 487 U.S., at 676 , n. 13. On the contrary,
Congress placed the Commission in the Judicial Branch precisely because of the Judiciary's
special knowledge and expertise.
Nor do the Guidelines, though substantive, involve a degree of political authority
inappropriate for a nonpolitical Branch. Although the Guidelines are intended to have
substantive effects on public behavior (as do the rules of procedure), they do not
bind or regulate the primary conduct of the public or vest in the Judicial Branch
the legislative responsibility for establishing minimum and maximum penalties for
every crime. They do no more than fetter the discretion of sentencing judges to do
what they have done for generations - impose sentences within the broad limits established
by Congress. Given their limited reach, the special role of the Judicial Branch in
the field of sentencing, and the fact that the Guidelines are promulgated by an independent
agency and not a court, it follows that as a matter of "practical consequences" the
location of the Sentencing Commission within the Judicial Branch simply leaves with
the Judiciary what long has belonged to it.
In sum, since substantive judgment in the field of sentencing has been and remains
appropriate to the Judicial Branch, and the methodology of rulemaking has been and
remains appropriate [488 U.S. 361, 397] to that Branch, Congress' considered decision
to combine these functions in an independent Sentencing Commission and to locate that
Commission within the Judicial Branch does not violate the principle of separation
of powers.
B
Composition of the Commission
We now turn to petitioner's claim that Congress' decision to require at least three
federal judges to serve on the Commission and to require those judges to share their
authority with nonjudges undermines the integrity of the Judicial Branch.
The Act provides in part: "At least three of [the Commission's] members shall be
Federal judges selected [by the President] after considering a list of six judges
recommended to the President by the Judicial Conference of the United States." 28
U.S.C. 991(a). Petitioner urges us to strike down the Act on the ground that its requirement
of judicial participation on the Commission unconstitutionally conscripts individual
federal judges for political service and thereby undermines the essential impartiality
of the Judicial Branch. We find Congress' requirement of judicial service somewhat
troublesome, but we do not believe that the Act impermissibly interferes with the
functioning of the Judiciary.
The text of the Constitution contains no prohibition against the service of active
federal judges on independent commissions such as that established by the Act. The
Constitution does include an Incompatibility Clause applicable to national legislators:
"No Senator or Representative shall, during the Time for which he was elected, be
appointed to any civil Office under the Authority of the United States, which shall
have been created, or the Emoluments whereof shall have been encreased during such
time; and no Person holding any Office under the United States, shall be a [488 U.S.
361, 398] Member of either House during his Continuance in Office." U.S. Const., Art.
I, 6, cl. 2.
No comparable restriction applies to judges, and we find it at least inferentially
meaningful that at the Constitutional Convention two prohibitions against plural officeholding
by members of the Judiciary were proposed, but did not reach the floor of the Convention
for a vote. 21
Our inferential reading that the Constitution does not prohibit Article III judges
from undertaking extrajudicial duties finds support in the historical practice of
the Founders after ratification. Our early history indicates that the Framers themselves
did not read the Constitution as forbidding extrajudicial service by federal judges.
The first Chief Justice, John Jay, served simultaneously as Chief Justice and as Ambassador
to England, where he negotiated the treaty that bears his name. Oliver Ellsworth served
simultaneously as [488 U.S. 361, 399] Chief Justice and as Minister to France. While
he was Chief Justice, John Marshall served briefly as Secretary of State and was a
member of the Sinking Fund Commission with responsibility for refunding the Revolutionary
War debt.
All these appointments were made by the President with the "Advice and Consent" of
the Senate. Thus, at a minimum, both the Executive and Legislative Branches acquiesced
in the assumption of extrajudicial duties by judges. In addition, although the records
of Congress contain no reference to the confirmation debate, Charles Warren, in his
history of this Court, reports that the Senate specifically rejected by a vote of
18 to 8 a resolution proposed during the debate over Jay's nomination to the effect
that such extrajudicial service was "contrary to the spirit of the Constitution."
1 C. Warren, The Supreme Court in United States History 119 (rev. ed. 1937). This
contemporaneous practice by the Founders themselves is significant evidence that the
constitutional principle of separation of powers does not absolutely prohibit extrajudicial
service. See Bowsher v. Synar, 478 U.S., at 723 -724 (actions by Members of the First
Congress provide contemporaneous and weighty evidence about the meaning of the Constitution).
22 [488 U.S. 361, 400]
Subsequent history, moreover, reveals a frequent and continuing, albeit controversial,
practice of extrajudicial service. 23 In 1877, five Justices served on the Election
Commission that resolved the hotly contested Presidential election of 1876, where
Samuel J. Tilden and Rutherford B. Hayes were the contenders. Justices Nelson, Fuller,
Brewer, Hughes, Day, Roberts, and Van Devanter served on various arbitral commissions.
Justice Roberts was a member of the commission organized to investigate the attack
on Pearl Harbor. Justice Jackson was one of the prosecutors at the Nuremberg trials;
and Chief Justice Warren presided over the commission investigating the assassination
of President Kennedy. 24 Such service has been no less a practice among lower court
federal judges. 25 While these extrajudicial activities spawned spirited [488 U.S.
361, 401] discussion and frequent criticism, and although some of the judges who undertook
these duties sometimes did so with reservation and may have looked back on their service
with regret, "traditional ways of conducting government . . . give meaning" to the
Constitution. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., at 610 (concurring
opinion). Our 200-year tradition of extrajudicial service is additional evidence that
the doctrine of separated powers does not prohibit judicial participation in certain
extrajudicial activity. 26 [488 U.S. 361, 402]
Furthermore, although we have not specifically addressed the constitutionality of
extrajudicial service, two of our precedents reflect at least an early understanding
by this Court that the Constitution does not preclude judges from assuming extrajudicial
duties in their individual capacities. In Hayburn's Case, 2 Dall. 409 (1792), the
Court considered a request for a writ of mandamus ordering a Circuit Court to execute
a statute empowering federal and state courts to set pensions for disabled Revolutionary
War veterans. The statute authorized the courts to determine monthly disability payments,
but it made those determinations reviewable by the Secretary of War. Because Congress
by an amendment of the statute rendered the case moot, the Court did not pass on the
constitutional issue. Mr. Dallas, in reporting the case, included in the margin three
Circuit Court rulings on the statute. All three concluded that the powers conferred
could not be performed by an Article III court. The "judicial Power" of the United
States did not extend to duties more properly performed by the Executive. See Morrison
v. Olson, 487 U.S., at 677 -678, n. 15 (characterizing Hayburn's Case). As this Court
later observed in United States v. Ferreira, 13 How. 40 (1852), however, the New York
Circuit, in 1791, with a bench consisting of Chief Justice Jay, Justice Cushing, and
District Judge Duane, believed that individual judges acting not in their judicial
capacities but as individual commissioners could exercise the duties conferred upon
them by the statute. Neither of the other two courts expressed a definitive view whether
judges acting as commissioners could make disability determinations reviewable by
the Secretary of War. In Ferreira, however, this Court concluded that although the
Circuit Courts were not fully in agreement as to whether the statute could be construed
as conferring the duties on the judges as commissioners, if the statute was subject
to that construction "there seems to have been no doubt, [488 U.S. 361, 403] at that
time, but that they might constitutionally exercise it, and the Secretary constitutionally
revise their decisions." Id., at 50.
Ferreira itself concerned a statute authorizing a Federal District Court in Florida
to adjudicate claims for losses for which the United States was responsible under
the 1819 treaty by which Spain ceded Florida to the United States. As in Hayburn's
Case, the court's determination was to be reported to an executive officer, the Secretary
of the Treasury, who would exercise final judgment as to whether the claims should
be paid. 13 How., at 45-47. This Court recognized that the powers conferred on the
District Court were "judicial in their nature," in the sense that they called for
"judgment and discretion." Id., at 48. Nonetheless, we concluded that those powers
were not "judicial . . . in the sense in which judicial power is granted by the Constitution
to the courts of the United States." Ibid. Because the District Court's decision was
not an exercise of judicial power, this Court found itself without jurisdiction to
hear the appeal. Id., at 51-52.
We did not conclude in Ferreira, however, that Congress could not confer on a federal
judge the function of resolving administrative claims. On the contrary, we expressed
general agreement with the view of some of the judges in Hayburn's Case that while
such administrative duties could not be assigned to a court, or to judges acting as
part of a court, such duties could be assigned to judges acting individually as commissioners.
Although we did not decide the question, we expressed reservation about whether the
District Judge in Florida could act legitimately as a commissioner since he was not
appointed as such by the President pursuant to his Article II power to appoint officers
of the United States. 13 How., at 51. In sum, Ferreira, like Hayburn's Case, suggests
that Congress may authorize a federal judge, in an individual capacity, to perform
an executive function without violating the separation of powers. [488 U.S. 361, 404]
Accord, United States v. Yale Todd (1794) (unreported decision discussed in the margin
of the opinion in Ferreira, 13 How., at 52-53).
In light of the foregoing history and precedent, we conclude that the principle of
separation of powers does not absolutely prohibit Article III judges from serving
on commissions such as that created by the Act. The judges serve on the Sentencing
Commission not pursuant to their status and authority as Article III judges, but solely
because of their appointment by the President as the Act directs. Such power as these
judges wield as Commissioners is not judicial power; it is administrative power derived
from the enabling legislation. Just as the nonjudicial members of the Commission act
as administrators, bringing their experience and wisdom to bear on the problems of
sentencing disparity, so too the judges, uniquely qualified on the subject of sentencing,
assume a wholly administrative role upon entering into the deliberations of the Commission.
In other words, the Constitution, at least as a per se matter, does not forbid judges
to wear two hats; it merely forbids them to wear both hats at the same time.
This is not to suggest, of course, that every kind of extrajudicial service under
every circumstance necessarily accords with the Constitution. That the Constitution
does not absolutely prohibit a federal judge from assuming extrajudicial duties does
not mean that every extrajudicial service would be compatible with, or appropriate
to, continuing service on the bench; nor does it mean that Congress may require a
federal judge to assume extrajudicial duties as long as the judge is assigned those
duties in an individual, not judicial, capacity. The ultimate inquiry remains whether
a particular extrajudicial assignment undermines the integrity of the Judicial Branch.
27 [488 U.S. 361, 405]
With respect to the Sentencing Commission, we understand petitioner to argue that
the service required of at least three judges presents two distinct threats to the
integrity of the Judicial Branch. Regardless of constitutionality, this mandatory
service, it is said, diminishes the independence of the Judiciary. See Brief for Petitioner
28. It is further claimed that the participation of judges on the Commission improperly
lends judicial prestige and an aura of judicial impartiality to the Commission's political
work. The involvement of Article III judges in the process of policymaking, petitioner
asserts, "`[w]eakens confidence in the disinterestedness of the judicatory functions.'"
Ibid., quoting F. Frankfurter, Advisory Opinions, in 1 Encyclopedia of the Social
Sciences 475, 478 (1930).
In our view, petitioner significantly overstates the mandatory nature of Congress'
directive that at least three members of the Commission shall be federal judges, as
well as the effect of this service on the practical operation of the Judicial Branch.
Service on the Commission by any particular judge is voluntary. The Act does not conscript
judges for the Commission. No Commission member to date has been appointed without
his consent and we have no reason to believe that the Act confers upon the President
any authority to [488 U.S. 361, 406] force a judge to serve on the Commission against
his will. 28 Accordingly, we simply do not face the question whether Congress may
require a particular judge to undertake the extrajudicial duty of serving on the Commission.
In Chandler v. Judicial Council, 398 U.S. 74 (1970), we found "no constitutional obstacle
preventing Congress from vesting in the Circuit Judicial Councils, as administrative
bodies," authority to administer "`the business of the courts within [each] circuit.'"
Id., at 86, n. 7, quoting 28 U.S.C. 332 (1970 ed.). 29 Indeed, Congress has created
numerous nonadjudicatory bodies, such as the Judicial Conference, that are composed
entirely, or in part, of federal judges. See 28 U.S.C. 331, 332; see generally Meador,
The Federal Judiciary and Its Future Administration, 65 Va. L. Rev. 1031 (1979). Accordingly,
absent a more specific threat to judicial independence, the fact that Congress has
included federal judges on the Commission does not itself threaten the integrity of
the Judicial Branch.
Moreover, we cannot see how the service of federal judges on the Commission will
have a constitutionally significant practical effect on the operation of the Judicial
Branch. We see no reason why service on the Commission should result in widespread
judicial recusals. That federal judges participate [488 U.S. 361, 407] in the promulgation
of guidelines does not affect their or other judges' ability impartially to adjudicate
sentencing issues. Cf. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438 (1946)
(that this Court promulgated the Federal Rules of Civil Procedure did not foreclose
its consideration of challenges to their validity). While in the abstract a proliferation
of commissions with congressionally mandated judiciary participation might threaten
judicial independence by exhausting the resources of the Judicial Branch, that danger
is far too remote for consideration here.
We are somewhat more troubled by petitioner's argument that the Judiciary's entanglement
in the political work of the Commission undermines public confidence in the disinterestedness
of the Judicial Branch. While the problem of individual bias is usually cured through
recusal, no such mechanism can overcome the appearance of institutional partiality
that may arise from judiciary involvement in the making of policy. The legitimacy
of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship.
That reputation may not be borrowed by the political Branches to cloak their work
in the neutral colors of judicial action.
Although it is a judgment that is not without difficulty, we conclude that the participation
of federal judges on the Sentencing Commission does not threaten, either in fact or
in appearance, the impartiality of the Judicial Branch. We are drawn to this conclusion
by one paramount consideration: that the Sentencing Commission is devoted exclusively
to the development of rules to rationalize a process that has been and will continue
to be performed exclusively by the Judicial Branch. In our view, this is an essentially
neutral endeavor and one in which judicial participation is peculiarly appropriate.
Judicial contribution to the enterprise of creating rules to limit the discretion
of sentencing judges does not enlist the resources or reputation of the Judicial Branch
in either the legislative business of determining what conduct should be criminalized
or the executive business of enforcing the law. [488 U.S. 361, 408] Rather, judicial
participation on the Commission ensures that judicial experience and expertise will
inform the promulgation of rules for the exercise of the Judicial Branch's own business
- that of passing sentence on every criminal defendant. To this end, Congress has
provided, not inappropriately, for a significant judicial voice on the Commission.
Justice Jackson underscored in Youngstown that the Constitution anticipates "reciprocity"
among the Branches. 343 U.S., at 635 . As part of that reciprocity and as part of
the integration of dispersed powers into a workable government, Congress may enlist
the assistance of judges in the creation of rules to govern the Judicial Branch. Our
principle of separation of powers anticipates that the coordinate Branches will converse
with each other on matters of vital common interest. While we have some reservation
that Congress required such a dialogue in this case, the Constitution does not prohibit
Congress from enlisting federal judges to present a uniquely judicial view on the
uniquely judicial subject of sentencing. In this case, at least, where the subject
lies so close to the heart of the judicial function and where purposes of the Commission
are not inherently partisan, such enlistment is not coercion or co-optation, but merely
assurance of judicial participation.
Finally, we reject petitioner's argument that the mixed nature of the Commission
violates the Constitution by requiring Article III judges to share judicial power
with nonjudges. As noted earlier, the Commission is not a court and exercises no judicial
power. Thus, the Act does not vest Article III power in nonjudges or require Article
III judges to share their power with nonjudges.
C
Presidential Control
The Act empowers the President to appoint all seven members of the Commission with
the advice and consent of the Senate. The Act further provides that the President
shall make his choice of judicial appointees to the Commission after considering a
list of six judges recommended by the Judicial [488 U.S. 361, 409] Conference of the
United States. The Act also grants the President authority to remove members of the
Commission, although "only for neglect of duty or malfeasance in office or for other
good cause shown." 28 U.S.C. 991(a).
Mistretta argues that this power of Presidential appointment and removal prevents
the Judicial Branch from performing its constitutionally assigned functions. 30 See
Nixon v. Administrator of General Services, 433 U.S., at 443 . Although we agree with
petitioner that the independence of the Judicial Branch must be "jealously guarded"
against outside interference, see Northern Pipeline Co. v. Marathon Pipe Line Co.,
458 U.S., at 60 , and that, as Madison admonished at the founding, "neither of [the
Branches] ought to possess directly or indirectly, an overruling influence over the
others in the administration of their respective powers," The Federalist No. 48, p.
332 (J. Cooke ed. 1961), we do not believe that the President's appointment and removal
powers over the Commission afford him influence over the functions of the Judicial
Branch or undue sway over its members.
The notion that the President's power to appoint federal judges to the Commission
somehow gives him influence over the Judicial Branch or prevents, even potentially,
the Judicial Branch from performing its constitutionally assigned functions is fanciful.
We have never considered it incompatible with the functioning of the Judicial Branch
that the President has the power to elevate federal judges from one level to another
or to tempt judges away from the bench with Executive Branch positions. The mere fact
that the President within his appointment portfolio has positions that may be attractive
to federal judges does not, of itself, corrupt the integrity of the Judiciary. Were
the impartiality of the Judicial [488 U.S. 361, 410] Branch so easily subverted, our
constitutional system of tripartite Government would have failed long ago. We simply
cannot imagine that federal judges will comport their actions to the wishes of the
President for the purpose of receiving an appointment to the Sentencing Commission.
31
The President's removal power over Commission members poses a similarly negligible
threat to judicial independence. The Act does not, and could not under the Constitution,
authorize the President to remove, or in any way diminish the status of Article III
judges, as judges. Even if removed from the Commission, a federal judge appointed
to the Commission would continue, absent impeachment, to enjoy tenure "during good
Behavior" and a full judicial salary. U.S. Const., Art. III, 1. 32 Also, the President's
removal power under the Act is limited. In order to safeguard the independence of
the Commission from executive control, Congress specified in the Act that the President
may remove the Commission members only for good cause. 33 Such congressional [488
U.S. 361, 411] limitation on the President's removal power, like the removal provisions
upheld in Morrison v. Olson, 487 U.S. 654 (1988), and Humphrey's Executor v. United
States, 295 U.S. 602 (1935), is specifically crafted to prevent the President from
exercising "coercive influence" over independent agencies. See Morrison, 487 U.S.,
at 688 ; Humphrey's Executor, 295 U.S., at 630 .
In other words, since the President has no power to affect the tenure or compensation
of Article III judges, even if the Act authorized him to remove judges from the Commission
at will, he would have no power to coerce the judges in the exercise of their judicial
duties. 34 In any case, Congress did not grant the President unfettered authority
to remove Commission members. Instead, precisely to ensure that they would not be
subject to coercion even in the exercise of their nonjudicial duties, Congress insulated
the members from Presidential removal except for good cause. Under these circumstances,
we see no risk that the President's limited removal power will compromise the impartiality
of Article III judges serving on the Commission and, consequently, no risk that the
Act's removal provision will prevent the Judicial Branch from performing its constitutionally
assigned function of fairly adjudicating cases and controversies. 35 [488 U.S. 361,
412]
V
We conclude that in creating the Sentencing Commission - an unusual hybrid in structure
and authority - Congress neither delegated excessive legislative power nor upset the
constitutionally mandated balance of powers among the coordinate Branches. The Constitution's
structural protections do not prohibit Congress from delegating to an expert body
located within the Judicial Branch the intricate task of formulating sentencing guidelines
consistent with such significant statutory direction as is present here. Nor does
our system of checked and balanced authority prohibit Congress from calling upon the
accumulated wisdom and experience of the Judicial Branch in creating policy on a matter
uniquely within the ken of judges. Accordingly, we hold that the Act is constitutional.
The judgment of United States District Court for the Western District of Missouri
is affirmed.
It is so ordered.
Footnotes
[ Footnote 1 ] Hereinafter, for simplicity in citation, each reference to the Act
is directed to Supplement IV to the 1982 edition of the United States Code.
[ Footnote 2 ] The District Court's memorandum, written by Judge Howard F. Sachs,
states that his conclusion that "the Guidelines are not subject to valid challenge"
by claims based on the Commission's lack of constitutional status or on a theory of
unconstitutional delegation of legislative power, 682 F. Supp., at 1033-1034, is shared
by District Judges Elmo B. Hunter, D. Brook Bartlett, and Dean Whipple of the Western
District. Id., at 1033, n. 1. Chief District Judge Scott O. Wright wrote in dissent.
Id., at 1035.
[ Footnote 3 ] The corresponding Report in the House of Representatives was filed
a year later. See H. R. Rep. No. 98-1017 (1984). The House bill (H. R. 6012, 98th
Cong., 2d Sess. (1984)) eventually was set aside in favor of the Senate bill. The
House Report, however, reveals that the Senate's rationale underlying sentencing reform
was shared in the House.
[ Footnote 4 ] Until the Parole Commission ceases to exist in 1992, as provided by
218(a)(5) and 235(a)(1) of the Act, 98 Stat. 2027 and 2031, the Chairman of that Commission
serves as an ex officio nonvoting member of the Sentencing Commission. 235(b)(5),
98 Stat. 2033.
[ Footnote 5 ] Petitioner's claims were identical to those raised by defendants in
other cases in the Western District of Missouri. Argument on petitioner's motion was
presented to a panel of sentencing judges. The result is described in n. 2, supra.
[ Footnote 6 ] The disarray is revealed by the District Court decisions cited in
the petition for certiorari in No. 87-1904, pp. 9-10, nn. 10 and 11. Since certiorari
was granted, a panel of the United States Court of Appeals for the Ninth Circuit,
by a divided vote, has invalidated the Guidelines on separation-of-powers grounds,
Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (1988), cert. pending sub nom. United States
v. Chavez-Sanchez, No. 88-550, and a panel of the Third Circuit (one judge, in dissent,
did not reach the constitutional issue) has upheld them, United States v. Frank, 864
F.2d 992 (1988).
[ Footnote 7 ] In Schechter and Panama Refining the Court concluded that Congress
had failed to articulate any policy or standard that would serve to confine the discretion
of the authorities to whom Congress had delegated power. No delegation of the kind
at issue in those cases is present here. The Act does not make crimes of acts never
before criminalized, see Fahey v. Mallonee, 332 U.S. 245, 249 (1947) (analyzing Panama
Refining), or delegate regulatory power to private individuals, see Yakus v. United
States, 321 U.S. 414, 424 (1944) (analyzing Schechter). In recent years, our application
of the nondelegation doctrine principally has been limited to the interpretation of
statutory texts, and, more particularly, to giving narrow constructions to statutory
delegations that might otherwise be thought to be unconstitutional. See, e. g., Industrial
Union Dept. v. American Petroleum Institute, 448 U.S. 607, 646 (1980); National Cable
Television Assn. v. United States, 415 U.S. 336, 342 (1974).
[ Footnote 8 ] Congress mandated that the guidelines include:
"(A) a determination whether to impose a sentence to probation, a fine, or a term
of imprisonment; [488 U.S. 361, 375] "(B) a determination as to the appropriate amount
of a fine or the appropriate length of a term of probation or a term of imprisonment;
"(C) a determination whether a sentence to a term of imprisonment should include
a requirement that the defendant be placed on a term of supervised release after imprisonment,
and, if so, the appropriate length of such a term; and
"(D) a determination whether multiple sentences to terms of imprisonment should be
ordered to run concurrently or consecutively." 28 U.S.C. 994(a)(1).
[ Footnote 9 ] The Senate Report on the legislation elaborated on the purpose to
be served by each factor. The Report noted, for example, that the reference to the
community view of the gravity of an offense was "not intended to mean that a sentence
might be enhanced because of public outcry about a single offense," but "to suggest
that changed community norms concerning certain particular criminal behavior might
be justification for increasing or decreasing the recommended penalties for the offense."
Report, at 170. The Report, moreover, gave specific examples of areas in which prevailing
sentences might be too lenient, including the treatment of major white-collar criminals.
Id., at 177.
[ Footnote 10 ] Again, the legislative history provides additional guidance for the
Commission's consideration of the statutory factors. For example, the history indicates
Congress' intent that the "criminal history . . . factor includes not only the number
of prior criminal acts - whether or not they resulted in convictions - the defendant
has engaged in, but their seriousness, their recentness or remoteness, and their indication
whether the defendant is a `career criminal' or a manager of a criminal enterprise."
Id., at 174. This legislative history, together with Congress' directive that the
Commission begin its consideration of the sentencing ranges by ascertaining the average
sentence imposed in each category in the past, and Congress' explicit requirement
that the Commission consult with authorities in the field of criminal sentencing provide
a factual background and statutory context that give content to the mandate of the
Commission. See American Power & Light Co. v. SEC, 329 U.S. 90, 104 -105 (1946).
[ Footnote 11 ] Petitioner argues that the excessive breadth of Congress' delegation
to the Commission is particularly apparent in the Commission's considering whether
to "reinstate" the death penalty for some or all of those crimes for which capital
punishment is still authorized in the Federal Criminal Code. See Brief for Petitioner
51-52. Whether, in fact, the Act confers upon the Commission the power to develop
guidelines and procedures to bring current death penalty provisions into line with
decisions of this Court is a matter of intense debate between the Executive Branch
and some members of Congress, including the Chairman of the Senate Judiciary Committee.
See Gubiensio-Ortiz v. Kanahele, 857 F.2d, at 1256. We assume, without deciding, that
the Commission was assigned the power to effectuate the death penalty provisions of
the Criminal Code. That the Commission may have this authority (but has not exercised
it) does not affect our analysis. Congress did not authorize the Commission to enact
a federal death penalty for any offense. As for every other offense within the Commission's
jurisdiction, the Commission could include the death penalty within the guidelines
only if that punishment was authorized in the first instance by Congress and only
if such inclusion comported with the substantial guidance Congress gave the Commission
in fulfilling its assignments. JUSTICE BRENNAN does not join this footnote.
[ Footnote 12 ] Madison admonished: "In republican government the legislative authority,
necessarily, predominates." The Federalist No. 51, p. 350 (J. Cooke ed. 1961).
[ Footnote 13 ] If the potential for disruption is present, we then determine "whether
that impact is justified by an overriding need to promote objectives within the constitutional
authority of Congress." Nixon v. Administrator of General Services, 433 U.S., at 443
.
[ Footnote 14 ] Our recent cases cast no doubt on the continuing vitality of the
view that rulemaking is not a function exclusively committed to the Executive Branch.
Although in INS v. Chadha, 462 U.S. 919 (1983), we characterized rulemaking as "Executive
action" not governed by the Presentment Clauses, we did so as part of our effort to
distinguish the rulemaking of administrative agencies from "lawmaking" by Congress
which is subject to the presentment requirements of Article I. Id., at 953, n. 16.
Plainly, this reference to rulemaking as an executive function was not intended to
undermine our recognition in previous cases and in over 150 years of practice that
rulemaking pursuant to a legislative delegation is not the exclusive prerogative of
the Executive. See, e. g., Buckley v. Valeo, 424 U.S. 1, 138 (1976) (distinguishing
between Federal Election Commission's exclusively executive enforcement power and
its other powers, including rulemaking); see also Humphrey's Executor v. United States,
295 U.S. 602, 617 (1935). On the contrary, rulemaking power originates in the Legislative
Branch and becomes an executive function only when delegated by the Legislature to
the Executive Branch.
More generally, it hardly can be argued in this case that Congress has impaired the
functioning of the Executive Branch. In the field of [488 U.S. 361, 387] sentencing,
the Executive Branch never has exercised the kind of authority that Congress has vested
in the Commission. Moreover, since Congress has empowered the President to appoint
and remove Commission members, the President's relationship to the Commission is functionally
no different from what it would have been had Congress not located the Commission
in the Judicial Branch. Indeed, since the Act grants ex officio membership on the
Commission to the Attorney General or his designee, 28 U.S.C. 991(a), the Executive
Branch's involvement in the Commission is greater than in other independent agencies,
such as the Securities and Exchange Commission, not located in the Judicial Branch.
[ Footnote 15 ] The Judicial Conference of the United States is charged with "promot[ing]
uniformity of management procedures and the expeditious conduct of court business,"
in part by "a continuous study of the operation and effect of the general rules of
practice and procedure," and recommending changes "to promote simplicity in procedure,
fairness in administration, the just determination of litigation, and the elimination
of unjustifiable expense and delay." 28 U.S.C. 331 (1982 ed. and Supp. IV). Similarly,
the Administrative Office of the United States Courts handles the administrative and
personnel matters of the courts, matters essential to the effective and efficient
operation of the judicial system. 604 (1982 ed. and Supp. IV). Congress also has established
the Federal Judicial Center which studies improvements in judicial administration.
620-628 (1982 ed. and Supp. IV).
[ Footnote 16 ] We also have upheld Congress' power under the Appointments Clause
to vest appointment power in the Judicial Branch, concluding that the power of appointment,
though not judicial, was not "inconsistent as a functional matter with the courts'
exercise of their Article III powers." Morrison v. Olson, 487 U.S. 654, 679 , n. 16
(1988). See also Ex parte Siebold, 100 U.S. 371 (1880) (appointment power not incongruous
to Judiciary). In Morrison, we noted that Article III courts perform a variety of
functions not necessarily or directly connected to adversarial proceedings [488 U.S.
361, 390] in a trial or appellate court. Federal courts supervise grand juries and
compel the testimony of witnesses before those juries, see Brown v. United States,
359 U.S. 41, 49 (1959), participate in the issuance of search warrants, see Fed. Rule
Crim. Proc. 41, and review wiretap applications, see 18 U.S.C. 2516, 2518 (1982 ed.
and Supp. IV). In the interest of effectuating their judgments, federal courts also
possess inherent authority to initiate a contempt proceeding and to appoint a private
attorney to prosecute the contempt. Young v. United States ex rel. Vuitton et Fils
S. A., 481 U.S. 787 (1987). See also In re Certain Complaints Under Investigation,
783 F.2d 1488, 1505 (CA11) (upholding statute authorizing judicial council to investigate
improper conduct by federal judge), cert. denied sub nom. Hastings v. Godbold, 477
U.S. 904 (1986).
[ Footnote 17 ] Indeed, had Congress decided to confer responsibility for promulgating
sentencing guidelines on the Executive Branch, we might face the constitutional questions
whether Congress unconstitutionally had assigned judicial responsibilities to the
Executive or unconstitutionally had united the power to prosecute and the power to
sentence within one Branch. Ronald L. Gainer, Acting Deputy Assistant Attorney General,
Department of Justice, testified before the Senate to this very effect: "If guidelines
were to be promulgated by an agency outside the judicial branch, it might be viewed
as an encroachment on a judicial function . . . ." Reform of the Federal Criminal
Laws, Hearing on S. 1437 et al. before the Subcommittee on Criminal Laws and Procedures
of the Senate Committee on the Judiciary, 95th Cong., 1st Sess., pt. 13, p. 9005 (1977).
[ Footnote 18 ] Under its mandate, the Commission must make judgments about the relative
importance of such considerations as the "circumstances under which the offense was
committed," the "community view of the gravity of the offense," and the "deterrent
effect a particular sentence may have on the commission of the offense by others."
28 U.S.C. 994(c)(2), (4), (6).
[ Footnote 19 ] Rule 23 of the Federal Rules of Civil Procedure, for example, has
inspired a controversy over the philosophical, social, and economic merits and demerits
of class actions. See Miller, Of Frankenstein Monsters and Shining Knights: Myth,
Reality, and the "Class Action Problem," 92 Harv. L. Rev. 664 (1979).
[ Footnote 20 ] We express no opinion about whether, under the principles of separation
of powers, Congress may confer on a court rulemaking authority such as that exercised
by the Sentencing Commission. Our precedents and customs draw no clear distinction
between nonadjudicatory activity that may be undertaken by auxiliary bodies within
the Judicial Branch, but not by courts. We note, however, that the constitutional
calculus is different for considering nonadjudicatory activities performed by bodies
that exercise judicial power and enjoy the constitutionally mandated autonomy of courts
from what it is for considering the nonadjudicatory activities of independent nonadjudicatory
agencies that Congress merely has located within the Judicial Branch pursuant to its
powers under the Necessary and Proper Clause. We make no attempt here to define the
nonadjudicatory duties that are appropriate for auxiliary bodies within the Judicial
Branch, but not for courts. Nonetheless, it is clear to us that an independent agency
located within the Judicial Branch may undertake without constitutional consequences
policy judgments pursuant to a legitimate congressional delegation of authority that,
if undertaken by a court, might be incongruous to or destructive of the central adjudicatory
mission of the Branch. See United States v. Ferreira, 13 How. 40 (1852). In this sense,
the issue we face here is different from the issue we faced in Morrison v. Olson,
487 U.S. 654 (1988), where we considered the constitutionality of the nonadjudicatory
functions assigned to the "Special Division" court created by the Ethics in Government
Act of 1978, 28 U.S.C. 49, 591 et seq. (1982 ed. and Supp. IV), or the issue we faced
in Hayburn's Case, 2 Dall. 409 [488 U.S. 361, 395] (1792), and in Ferreira, in which
Article III courts were asked to render judgments that were reviewable by an executive
officer.
[ Footnote 21 ] One such prohibition appeared in the New Jersey Plan's judiciary
provision, see 1 M. Farrand, The Records of the Federal Convention of 1787, p. 244
(1911); the other, proposed by Charles Pinckney, a delegate from South Carolina, was
not reported out of the Committee on Detail to which he submitted it, see 2 id., at
341-342. See also Wheeler, Extrajudicial Activities of the Early Supreme Court, 1973
S. Ct. Rev. 123. Concededly, it is also true that the delegates at the Convention
rejected two proposals that would have institutionalized extrajudicial service. Despite
support from Madison, the Framers rejected a proposed "Council of Revision," comprised
of, among others, a "convenient number of the National Judiciary," 1 Farrand, supra,
at 21, that would have exercised veto power over proposed legislation. Similarly,
the Framers rejected a proposed "Council of State," of which the Chief Justice was
to be a member, that would have acted as adviser to the President in a fashion similar
to the modern cabinet. See Lerner, The Supreme Court as Republican Schoolmaster, 1967
S. Ct. Rev. 127, 174-177. At least one commentator has observed that a number of the
opponents of the Council of Revision and the Council of State believed that judges
individually could assume extrajudicial service. Wheeler, supra, at 127-130. We do
not pretend to discern a clear intent on the part of the Framers with respect to this
issue, but glean from the Constitution and the events at the Convention simply an
inference that the Framers did not intend to forbid judges to hold extrajudicial positions.
See United States v. Nixon, 418 U.S. 683, 705 -706, n. 16 (1974).
[ Footnote 22 ] It would be naive history, however, to suggest that the Framers,
including the Justices who accepted extrajudicial service, were of one mind on the
issue or believed that such service was in all cases appropriate and constitutional.
Chief Justice Jay, in draft correspondence to President Washington, explained that
he was "far from thinking it illegal or unconstitutional," for the Executive to use
individual judges for extrajudicial service so long as the extrajudicial service was
"consistent and compatible" with "the judicial function." Draft of a letter by Jay,
intended for President Washington, enclosed with a letter dated September 15, 1790,
from Jay to Justice Iredell, reproduced in 2 G. McRee, Life and Correspondence of
James Iredell 293, 294 (1949). Chief Justice Marshall stepped down from his post as
Secretary of State when appointed to the bench, agreeing to stay on only until a replacement
could be found. Chief Justice Ellsworth accepted his posting to France with reluctance
and his appointment was unsuccessfully opposed on constitutional grounds by Jefferson,
Madison, and Pinckney. But that some judges have turned down [488 U.S. 361, 400] extrajudicial
service or have expressed reservations about the practice, see Mason, Extra-Judicial
Work for Judges: The Views of Chief Justice Stone, 67 Harv. L. Rev. 193 (1953), does
not detract from the fact that judges have continued to assume extrajudicial duties,
and efforts to curb the practice as contrary to the letter or spirit of the Constitution
have not succeeded. But see Note, The Constitutional Infirmities of the United States
Sentencing Commission, 96 Yale L. J. 1363, 1381-1385 (1987).
[ Footnote 23 ] Compendia of extrajudicial activities may be found in several sources.
See Mason, supra; McKay, The Judiciary and Nonjudicial Activities, 35 Law & Contemp.
Prob. 9 (1970); Slonim, Extrajudicial Activities and the Principle of the Separation
of Powers, 49 Conn. B. J. 391 (1975). See also In re President's Comm'n on Organized
Crime, 783 F.2d 370 (CA3 1986).
[ Footnote 24 ] Article III judges, and the Chief Justice in particular, also have
served and continue to serve on numerous cultural commissions. The Chief Justice by
statute is a member of the Board of Regents of the Smithsonian Institution, Rev. Stat.
5580, as amended, 20 U.S.C. 42, and a trustee of the National Gallery of Art, 50 Stat.
52, 20 U.S.C. 72(a). Four Justices, pursuant to 44 U.S.C. 2501, have served successively
as the judiciary member of the National Historical Publications and Records Commission.
And Chief Justice Burger began his service as Chairman of the Commission on the Bicentennial
of the United States Constitution before he assumed retirement status. See Pub. L.
98-101, 97 Stat. 719.
[ Footnote 25 ] For example, Judges A. Leon Higginbotham, Jr., James B. Parsons,
Luther W. Youngdahl, George C. Edwards, Jr., James M. Carter, and [488 U.S. 361, 401]
Thomas J. MacBride, and others, have served on various Presidential and national commissions.
See Brief for United States 48, n. 40.
[ Footnote 26 ] Extrajudicial activity has been the subject of extensive testimony
in Congress from federal judges, academics, legislators, and members of the legal
community. See Nonjudicial Activities of Supreme Court Justices and other Federal
Judges, Hearings before the Subcommittee on Separation of Powers of the Senate Committee
on the Judiciary, 91st Cong., 1st Sess. (1969). Although many participants were critical
of extrajudicial service, the testimony shed little light on what types of service
were not merely unwise, but unconstitutional.
Perhaps the most interesting lament on the subject comes from Chief Justice Warren
reflecting on his initial refusal to participate in the commission looking into President
Kennedy's death:
"First, it is not in the spirit of constitutional separation of powers to have a
member of the Supreme Court serve on a presidential commission; second, it would distract
a Justice from the work of the Court, which had a heavy docket; and, third, it was
impossible to foresee what litigation such a commission might spawn, with resulting
disqualification of the Justice from sitting in such cases. I then told them that,
historically, the acceptance of diplomatic posts by Chief Justices Jay and Ellsworth
had not contributed to the welfare of the Court, that the service of five Justices
on the Hayes-Tilden Commission had demeaned it, that the appointment of Justice Roberts
as chairman to investigate the Pearl Harbor disaster had served no good purpose, and
that the action of Justice Robert Jackson in leaving Court for a year to become chief
prosecutor at Nurnberg after World War II had resulted in divisiveness and internal
bitterness on the Court." E. Warren, The Memoirs of Earl Warren 356 (1977).
Despite his initial reservations, the Chief Justice served as Chairman of the commission
and endured criticism for so doing.
[ Footnote 27 ] The effect of extrajudicial service on the functioning of the Judicial
Branch is not solely a constitutional concern. The Code of Conduct for United States
Judges, approved by the Judicial Conference of the United [488 U.S. 361, 405] States,
is intended to ensure that a judge does not accept extrajudicial service incompatible
with the performance of judicial duties or that might compromise the integrity of
the Branch as a whole. Canon 5(G) provides:
"A judge should not accept appointment to a governmental committee, commission, or
other position that is concerned with issues of fact or policy on matters other than
the improvement of the law, the legal system, or the administration of justice, unless
appointment of a judge is required by Act of Congress. A judge should not, in any
event, accept such an appointment if the judge's governmental duties would interfere
with the performance of judicial duties or tend to undermine the public confidence
in the integrity, impartiality, or independence of the judiciary . . . ." Administrative
Office of U.S. Courts, Code of Judicial Conduct for United States Judges (1987).
[ Footnote 28 ] Certainly nothing in the Act creates any coercive power over members
of the Judicial Branch and we construe the statute as affording none. "[I]t is the
duty of federal courts to construe a statute in order to save it from constitutional
infirmities, see, e. g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833,
841 (1986)." Morrison v. Olson, 487 U.S., at 682 .
[ Footnote 29 ] `Notably, the statutory provision creating the Judicial Councils
of the Circuits that we found constitutionally unobjectionable in Chandler requires
the Chief Judge of each Court of Appeals to preside over his Circuit's Judicial Council.
28 U.S.C. 332. The statutory provision creating the Judicial Conference of the United
States also requires the service of the Chief Judge of each Court of Appeals. 28 U.S.C.
331 (1982 ed. and Supp. IV). Thus, we have given at least tacit approval to this degree
of congressionally mandated judicial service on nonadjudicatory bodies.
[ Footnote 30 ] Petitioner does not raise the issue central to our most recent opinions
discussing removal power, namely, whether Congress unconstitutionally has limited
the President's authority to remove officials engaged in executive functions or has
reserved for itself excessive removal power over such officials. See Morrison v. Olson,
487 U.S. 654 (1988); Bowsher v. Synar, 478 U.S. 714 (1986).
[ Footnote 31 ] Moreover, as has been noted, the Act limits the President's power
to use his appointments to the Commission for political purposes by explicitly requiring
that he consider a list of six judges submitted by the Judicial Conference before
making his selections. Senator Hart explained that this provision provided "greater
assurance that a broad range of interests will be represented." 124 Cong. Rec. 378
(1978).
[ Footnote 32 ] The textual requirements of Article III that judges shall enjoy tenure
and be paid an irreducible compensation "were incorporated into the Constitution to
ensure the independence of the Judiciary from control of the Executive and Legislative
Branches of government." Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S.
50, 59 (1982). These inviolable guarantees are untrammeled by the Act. Concededly,
since Commission members receive a salary equal to that of a court of appeals judge,
28 U.S.C. 992(c), district court judges appointed to the Commission receive an increase
in salary. We do not address the hypothetical constitutional question whether, under
the Compensation Clause of Article III, a district judge removed from the Commission
must continue to be paid the higher salary.
[ Footnote 33 ] This removal provision is precisely the kind that was at issue in
Humphrey's Executor v. United States where we wrote: "The authority of Congress, in
creating quasi-legislative or quasi-judicial agencies, to require [488 U.S. 361, 411]
them to act in discharge of their duties independently of executive control cannot
well be doubted; and that authority includes, as an appropriate incident, power to
fix the period during which [commissioners] shall continue in office, and to forbid
their removal except for cause in the meantime." 295 U.S., at 629 .
[ Footnote 34 ] Although removal from the Sentencing Commission conceivably could
involve some embarrassment or even damage to reputation, each judge made potentially
subject to these injuries will have undertaken the risk voluntarily by accepting the
President's appointment to serve.
[ Footnote 35 ] Bowsher v. Synar, 478 U.S. 714 (1986), is not to the contrary. In
Bowsher, we held that "Congress cannot reserve for itself the power of removal of
an officer charged with the execution of the laws except by impeachment." Id., at
726. To permit Congress to remove an officer performing executive functions whenever
Congress might find the performance of his duties unsatisfactory would, in essence,
give Congress [488 U.S. 361, 412] veto power over executive action. In light of the
special danger recognized by the Founders of congressional usurpation of Executive
Branch functions, "[t]his kind of congressional control over the execution of the
laws . . . is constitutionally impermissible." Id., at 726-727.
Nothing in Bowsher, however, suggests that one Branch may never exercise removal
power, however limited, over members of another Branch. Indeed, we already have recognized
that the President may remove a judge who serves on an Article I court. McAllister
v. United States, 141 U.S. 174, 185 (1891). In any event, we hold here no more than
that Congress may vest in the President the power to remove for good cause an Article
III judge from a nonadjudicatory independent agency placed within the Judicial Branch.
Because an Article III judge serving on a nonadjudicatory commission is not exercising
judicial power, and because such limited removal power gives the President no control
over judicatory functions, interbranch removal authority under these limited circumstances
poses no threat to the balance of power among the Branches. Our paramount concern
in Bowsher that Congress was accreting to itself the power to control the functions
of another Branch is not implicated by a removal provision, like the one at issue
here, which provides no control in one Branch over the constitutionally assigned mission
of another Branch. [488 U.S. 361, 413]
JUSTICE SCALIA, dissenting.
While the products of the Sentencing Commission's labors have been given the modest
name "Guidelines," see 28 U.S.C. 994(a)(1) (1982 ed., Supp. IV); United States Sentencing
Commission Guidelines Manual (June 15, 1988), they have the force and effect of laws,
prescribing the sentences criminal defendants are to receive. A judge who disregards
them will be reversed, 18 U.S.C. 3742 (1982 ed., Supp. IV). I dissent from today's
decision because I can find no place within our constitutional system for an agency
created by Congress to exercise no governmental power other than the making of laws.
I
There is no doubt that the Sentencing Commission has established significant, legally
binding prescriptions governing application of governmental power against private
individuals - indeed, application of the ultimate governmental power, short of capital
punishment. 1 Statutorily permissible sentences for particular crimes cover as broad
a range as zero years to life, see, e. g., 18 U.S.C. 1201 (1982 ed. and Supp. IV)
(kidnaping), and within those ranges the Commission was given broad discretion to
prescribe the "correct" sentence, 28 U.S.C. 994(b)(2) (1982 ed., Supp. IV). Average
prior sentences were to be a starting point for the Commission's inquiry, 994(m),
but it could and regularly did deviate from those averages as it thought appropriate.
It chose, for example, to prescribe substantial increases over average prior sentences
for white-collar crimes such as public corruption, antitrust violations, and tax evasion.
Guidelines, [488 U.S. 361, 414] at 2.31, 2.133, 2.140. For antitrust violations, before
the Guidelines, only 39% of those convicted served any imprisonment, and the average
imprisonment was only 45 days, id., at 2.133, whereas the Guidelines prescribe base
sentences (for defendants with no prior criminal conviction) ranging from 2-to-8 months
to 10-to-16 months, depending upon the volume of commerce involved. See id., at 2.131,
5.2.
The Commission also determined when probation was permissible, imposing a strict
system of controls because of its judgment that probation had been used for an "inappropriately
high percentage of offenders guilty of certain economic crimes." Id., at 1.8. Moreover,
the Commission had free rein in determining whether statutorily authorized fines should
be imposed in addition to imprisonment, and if so, in what amounts. It ultimately
decided that every nonindigent offender should pay a fine according to a schedule
devised by the Commission. Id., at 5.18. Congress also gave the Commission discretion
to determine whether 7 specified characteristics of offenses, and 11 specified characteristics
of offenders, "have any relevance," and should be included among the factors varying
the sentence. 28 U.S.C. 994(c), (d) (1982 ed., Supp. IV). Of the latter, it included
only three among the factors required to be considered, and declared the remainder
not ordinarily relevant. Guidelines, at 5.29-5.31.
It should be apparent from the above that the decisions made by the Commission are
far from technical, but are heavily laden (or ought to be) with value judgments and
policy assessments. This fact is sharply reflected in the Commission's product, as
described by the dissenting Commissioner:
"Under the guidelines, the judge could give the same sentence for abusive sexual
contact that puts the child in fear as for unlawfully entering or remaining in the
United States. Similarly, the guidelines permit equivalent sentences for the following
pairs of offenses: drug [488 U.S. 361, 415] trafficking and a violation of the Wild
Free-Roaming Horses and Burros Act; arson with a destructive device and failure to
surrender a cancelled naturalization certificate; operation of a common carrier under
the influence of drugs that causes injury and alteration of one motor vehicle identification
number; illegal trafficking in explosives and trespass; interference with a flight
attendant and unlawful conduct relating to contraband cigarettes; aggravated assault
and smuggling $11,000 worth of fish." Dissenting View of Commissioner Paul H. Robinson
on the Promulgation of the Sentencing Guidelines by the United States Sentencing Commission
6-7 (May 1, 1987) (citations omitted).
Petitioner's most fundamental and far-reaching challenge to the Commission is that
Congress' commitment of such broad policy responsibility to any institution is an
unconstitutional delegation of legislative power. It is difficult to imagine a principle
more essential to democratic government than that upon which the doctrine of unconstitutional
delegation is founded: Except in a few areas constitutionally committed to the Executive
Branch, the basic policy decisions governing society are to be made by the Legislature.
Our Members of Congress could not, even if they wished, vote all power to the President
and adjourn sine die.
But while the doctrine of unconstitutional delegation is unquestionably a fundamental
element of our constitutional system, it is not an element readily enforceable by
the courts. Once it is conceded, as it must be, that no statute can be entirely precise,
and that some judgments, even some judgments involving policy considerations, must
be left to the officers executing the law and to the judges applying it, the debate
over unconstitutional delegation becomes a debate not over a point of principle but
over a question of degree. As Chief Justice Taft expressed the point for the Court
in the landmark case of J. W. Hampton, Jr., & Co. v. United [488 U.S. 361, 416] States,
276 U.S. 394, 406 (1928), the limits of delegation "must be fixed according to common
sense and the inherent necessities of the governmental co-ordination." Since Congress
is no less endowed with common sense than we are, and better equipped to inform itself
of the "necessities" of government; and since the factors bearing upon those necessities
are both multifarious and (in the nonpartisan sense) highly political - including,
for example, whether the Nation is at war, see Yakus v. United States, 321 U.S. 414
(1944), or whether for other reasons "emergency is instinct in the situation," Amalgamated
Meat Cutters and Butcher Workmen of North America v. Connally, 337 F. Supp. 737, 752
(DC 1971) (three-judge court) - it is small wonder that we have 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. As the Court points out,
we have invoked the doctrine of unconstitutional delegation to invalidate a law only
twice in our history, over half a century ago. See Panama Refining Co. v. Ryan, 293
U.S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
What legislated standard, one must wonder, can possibly be too vague to survive judicial
scrutiny, when we have repeatedly upheld, in various contexts, a "public interest"
standard? See, e. g., National Broadcasting Co. v. United States, 319 U.S. 190, 216
-217 (1943); New York Central Securities Corp. v. United States, 287 U.S. 12, 24 -25
(1932).
In short, I fully agree with the Court's rejection of petitioner's contention that
the doctrine of unconstitutional delegation of legislative authority has been violated
because of the lack of intelligible, congressionally prescribed standards to guide
the Commission.
II
Precisely because the scope of delegation is largely uncontrollable by the courts,
we must be particularly rigorous in [488 U.S. 361, 417] preserving the Constitution's
structural restrictions that deter excessive delegation. The major one, it seems to
me, is that the power to make law cannot be exercised by anyone other than Congress,
except in conjunction with the lawful exercise of executive or judicial power.
The whole theory of lawful congressional "delegation" is not that Congress is sometimes
too busy or too divided and can therefore assign its responsibility of making law
to someone else; but rather that a certain degree of discretion, and thus of lawmaking,
inheres in most executive or judicial action, and it is up to Congress, by the relative
specificity or generality of its statutory commands, to determine - up to a point
- how small or how large that degree shall be. Thus, the courts could be given the
power to say precisely what constitutes a "restraint of trade," see Standard Oil Co.
of New Jersey v. United States, 221 U.S. 1 (1911), or to adopt rules of procedure,
see Sibbach v. Wilson & Co., 312 U.S. 1, 22 (1941), or to prescribe by rule the manner
in which their officers shall execute their judgments, Wayman v. Southard, 10 Wheat.
1, 45 (1825), because that "lawmaking" was ancillary to their exercise of judicial
powers. And the Executive could be given the power to adopt policies and rules specifying
in detail what radio and television licenses will be in the "public interest, convenience
or necessity," because that was ancillary to the exercise of its executive powers
in granting and policing licenses and making a "fair and equitable allocation" of
the electromagnetic spectrum. See Federal Radio Comm'n v. Nelson Brothers Bond & Mortgage
Co., 289 U.S. 266, 285 (1933). 2 Or to take examples closer to the case before us:
Trial judges could be given the power to determine [488 U.S. 361, 418] what factors
justify a greater or lesser sentence within the statutorily prescribed limits because
that was ancillary to their exercise of the judicial power of pronouncing sentence
upon individual defendants. And the President, through the Parole Commission subject
to his appointment and removal, could be given the power to issue Guidelines specifying
when parole would be available, because that was ancillary to the President's exercise
of the executive power to hold and release federal prisoners. See 18 U.S.C. 4203(a)(1)
and (b); 28 CFR 2.20 (1988).
As Justice Harlan wrote for the Court in Field v. Clark, 143 U.S. 649 (1892):
"`The true distinction . . . is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring authority
or discretion as to its execution, to be exercised under and in pursuance of the law.
The first cannot be done; to the latter no valid objection can be made.'" Id., at
693-694 (emphasis added), quoting Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton
County, 1 Ohio St. 77, 88-89 (1852).
"`Half the statutes on our books are in the alternative, depending on the discretion
of some person or persons to whom is confided the duty of determining whether the
proper occasion exists for executing them. But it cannot be said that the exercise
of such discretion is the making of the law.'" Id., at 694 (emphasis added), quoting
Moers v. Reading, 21 Pa. 188, 202 (1853).
In United States v. Grimaud, 220 U.S. 506, 517 (1911), which upheld a statutory grant
of authority to the Secretary of Agriculture to make rules and regulations governing
use of the public forests he was charged with managing, the Court said: [488 U.S.
361, 419]
"From the beginning of the Government various acts have been passed conferring upon
executive officers power to make rules and regulations - not for the government of
their departments, but for administering the laws which did govern. None of these
statutes could confer legislative power." (Emphasis added.)
Or, finally, as Chief Justice Taft described it in Hampton & Co., 276 U.S., at 406
:
"The field of Congress involves all and many varieties of legislative action, and
Congress has found it frequently necessary to use officers of the Executive Branch,
within defined limits, to secure the exact effect intended by its acts of legislation,
by vesting discretion in such officers to make public regulations interpreting a statute
and directing the details of its execution, even to the extent of providing for penalizing
a breach of such regulations." (Emphasis added.)
The focus of controversy, in the long line of our so-called excessive delegation
cases, has been whether the degree of generality contained in the authorization for
exercise of executive or judicial powers in a particular field is so unacceptably
high as to amount to a delegation of legislative powers. I say "so-called excessive
delegation" because although that convenient terminology is often used, what is really
at issue is whether there has been any delegation of legislative power, which occurs
(rarely) when Congress authorizes the exercise of executive or judicial power without
adequate standards. Strictly speaking, there is no acceptable delegation of legislative
power. As John Locke put it almost 300 years ago, "[t]he power of the legislative
being derived from the people by a positive voluntary grant and institution, can be
no other, than what the positive grant conveyed, which being only to make laws, and
not to make legislators, the legislative [488 U.S. 361, 420] can have no power to
transfer their authority of making laws, and place it in other hands." J. Locke, Second
Treatise of Government 87 (R. Cox ed. 1982) (emphasis added). Or as we have less epigrammatically
said: "That Congress cannot delegate legislative power to the President is a principle
universally recognized as vital to the integrity and maintenance of the system of
government ordained by the Constitution." Field v. Clark, supra, at 692. In the present
case, however, a pure delegation of legislative power is precisely what we have before
us. It is irrelevant whether the standards are adequate, because they are not standards
related to the exercise of executive or judicial powers; they are, plainly and simply,
standards for further legislation.
The lawmaking function of the Sentencing Commission is completely divorced from any
responsibility for execution of the law or adjudication of private rights under the
law. It is divorced from responsibility for execution of the law not only because
the Commission is not said to be "located in the Executive Branch" (as I shall discuss
presently, I doubt whether Congress can "locate" an entity within one Branch or another
for constitutional purposes by merely saying so); but, more importantly, because the
Commission neither exercises any executive power on its own, nor is subject to the
control of the President who does. The only functions it performs, apart from prescribing
the law, 28 U.S.C. 994(a) (1), (3) (1982 ed., Supp. IV), conducting the investigations
useful and necessary for prescribing the law, e. g., 995(a) (13), (15), (16), (21),
and clarifying the intended application of the law that it prescribes, e. g., 994(a)(2),
995(a)(10), are data collection and intragovernmental advice giving and education,
e. g., 995(a)(8), (9), (12), (17), (18), (20). These latter activities - similar to
functions performed by congressional agencies and even congressional staff - neither
determine nor affect private rights, and do not constitute an exercise of governmental
power. See Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935). And the
Commission's [488 U.S. 361, 421] lawmaking is completely divorced from the exercise
of judicial powers since, not being a court, it has no judicial powers itself, nor
is it subject to the control of any other body with judicial powers. The power to
make law at issue here, in other words, is not ancillary but quite naked. The situation
is no different in principle from what would exist if Congress gave the same power
of writing sentencing laws to a congressional agency such as the General Accounting
Office, or to members of its staff.
The delegation of lawmaking authority to the Commission is, in short, unsupported
by any legitimating theory to explain why it is not a delegation of legislative power.
To disregard structural legitimacy is wrong in itself - but since structure has purpose,
the disregard also has adverse practical consequences. In this case, as suggested
earlier, the consequence is to facilitate and encourage judicially uncontrollable
delegation. Until our decision last Term in Morrison v. Olson, 487 U.S. 654 (1988),
it could have been said that Congress could delegate lawmaking authority only at the
expense of increasing the power of either the President or the courts. Most often,
as a practical matter, it would be the President, since the judicial process is unable
to conduct the investigations and make the political assessments essential for most
policymaking. Thus, the need for delegation would have to be important enough to induce
Congress to aggrandize its primary competitor for political power, and the recipient
of the policymaking authority, while not Congress itself, would at least be politically
accountable. But even after it has been accepted, pursuant to Morrison, that those
exercising executive power need not be subject to the control of the President, Congress
would still be more reluctant to augment the power of even an independent executive
agency than to create an otherwise powerless repository for its delegation. Moreover,
assembling the full-time senior personnel for an agency exercising executive powers
is more difficult than borrowing other officials (or employing new officers on a [488
U.S. 361, 422] short-term basis) to head an organization such as the Sentencing Commission.
By reason of today's decision, I anticipate that Congress will find delegation of
its lawmaking powers much more attractive in the future. If rulemaking can be entirely
unrelated to the exercise of judicial or executive powers, I foresee all manner of
"expert" bodies, insulated from the political process, to which Congress will delegate
various portions of its lawmaking responsibility. How tempting to create an expert
Medical Commission (mostly M.D.'s, with perhaps a few Ph.D.'s in moral philosophy)
to dispose of such thorny, "no-win" political issues as the withholding of life-support
systems in federally funded hospitals, or the use of fetal tissue for research. This
is an undemocratic precedent that we set - not because of the scope of the delegated
power, but because its recipient is not one of the three Branches of Government. The
only governmental power the Commission possesses is the power to make law; and it
is not the Congress.
III
The strange character of the body that the Court today approves, and its incompatibility
with our constitutional institutions, is apparent from that portion of the Court's
opinion entitled "Location of the Commission." This accepts at the outset that the
Commission is a "body within the Judicial Branch," ante, at 385, and rests some of
its analysis upon that asserted reality. Separation-of-powers problems are dismissed,
however, on the ground that "[the Commission's] powers are not united with the powers
of the Judiciary in a way that has meaning for separation-of-powers analysis," since
the Commission "is not a court, does not exercise judicial power, and is not controlled
by or accountable to members of the Judicial Branch," ante, at 393. In light of the
latter concession, I am at a loss to understand why the Commission is "within the
Judicial Branch" in any sense that has relevance to today's discussion. I am sure
that Congress can [488 U.S. 361, 423] divide up the Government any way it wishes,
and employ whatever terminology it desires, for nonconstitutional purposes - for example,
perhaps the statutory designation that the Commission is "within the Judicial Branch"
places it outside the coverage of certain laws which say they are inapplicable to
that Branch, such as the Freedom of Information Act, see 5 U.S.C. 552(f) (1982 ed.,
Supp. IV). For such statutory purposes, Congress can define the term as it pleases.
But since our subject here is the Constitution, to admit that that congressional designation
"has [no] meaning for separation-of-powers analysis" is to admit that the Court must
therefore decide for itself where the Commission is located for purposes of separation-of-powers
analysis.
It would seem logical to decide the question of which Branch an agency belongs to
on the basis of who controls its actions: If Congress, the Legislative Branch; if
the President, the Executive Branch; if the courts (or perhaps the judges), the Judicial
Branch. See, e. g., Bowsher v. Synar, 478 U.S. 714, 727 -732 (1986). In Humphrey's
Executor v. United States, 295 U.S. 602 (1986) î , we approved the concept of an agency
that was controlled by (and thus within) none of the Branches. We seem to have assumed,
however, that that agency (the old Federal Trade Commission, before it acquired many
of its current functions) exercised no governmental power whatever, but merely assisted
Congress and the courts in the performance of their functions. See id., at 628. Where
no governmental power is at issue, there is no strict constitutional impediment to
a "branchless" agency, since it is only "[a]ll legislative Powers," Art. I, 1, "[t]he
executive Power," Art. II, 1, and "[t]he judicial Power," Art. III, 1, which the Constitution
divides into three departments. (As an example of a "branchless" agency exercising
no governmental powers, one can conceive of an Advisory Commission charged with reporting
to all three Branches, whose members are removable only for cause and are thus subject
to the control of none of the Branches.) Over the years, however, [488 U.S. 361, 424]
Humphrey's Executor has come in general contemplation to stand for something quite
different - not an "independent agency" in the sense of an agency independent of all
three Branches, but an "independent agency" in the sense of an agency within the Executive
Branch (and thus authorized to exercise executive powers) independent of the control
of the President.
We approved that concept last Term in Morrison. See 487 U.S., at 688 -691. I dissented
in that case, essentially because I thought that concept illogical and destructive
of the structure of the Constitution. I must admit, however, that today's next step
- recognition of an independent agency in the Judicial Branch - makes Morrison seem,
by comparison, rigorously logical. "The Commission," we are told, "is an independent
agency in every relevant sense." Ante, at 393. There are several problems with this.
First, once it is acknowledged that an "independent agency" may be within any of the
three Branches, and not merely within the Executive, then there really is no basis
for determining what Branch such an agency belongs to, and thus what governmental
powers it may constitutionally be given, except (what the Court today uses) Congress'
say-so. More importantly, however, the concept of an "independent agency" simply does
not translate into the legislative or judicial spheres. Although the Constitution
says that "[t]he executive Power shall be vested in a President of the United States
of America," Art. II, 1, it was never thought that the President would have to exercise
that power personally. He may generally authorize others to exercise executive powers,
with full effect of law, in his place. See, e. g., Wolsey v. Chapman, 101 U.S. 755
(1880); Williams v. United States, 1 How. 290 (1843). It is already a leap from the
proposition that a person who is not the President may exercise executive powers to
the proposition we accepted in Morrison that a person who is neither the President
nor subject to the President's control may exercise executive powers. But with [488
U.S. 361, 425] respect to the exercise of judicial powers (the business of the Judicial
Branch) the platform for such a leap does not even exist. For unlike executive power,
judicial and legislative powers have never been thought delegable. A judge may not
leave the decision to his law clerk, or to a master. See United States v. Raddatz,
447 U.S. 667, 683 (1980); cf. Runkle v. United States, 122 U.S. 543 (1887). Senators
and Members of the House may not send delegates to consider and vote upon bills in
their place. See Rules of the House of Representatives, Rule VIII(3); Standing Rules
of the United States Senate, Rule XII. Thus, however well established may be the "independent
agencies" of the Executive Branch, here we have an anomaly beyond equal: an independent
agency exercising governmental power on behalf of a Branch where all governmental
power is supposed to be exercised personally by the judges of courts. 3
Today's decision may aptly be described as the Humphrey's Executor of the Judicial
Branch, and I think we will live to regret it. Henceforth there may be agencies "within
the Judicial Branch" (whatever that means), exercising governmental powers, that are
neither courts nor controlled by courts, nor even controlled by judges. If an "independent
agency" such as this can be given the power to fix sentences previously exercised
by district courts, I must assume that a similar agency can be given the powers to
adopt rules of procedure [488 U.S. 361, 426] and rules of evidence previously exercised
by this Court. The bases for distinction would be thin indeed.
* * *
Today's decision follows the regrettable tendency of our recent separation-of-powers
jurisprudence, see Morrison, supra; Young v. United States ex rel. Vuitton et Fils
S. A., 481 U.S. 787 (1987), to treat the Constitution as though it were no more than
a generalized prescription that the functions of the Branches should not be commingled
too much - how much is too much to be determined, case-by-case, by this Court. The
Constitution is not that. Rather, as its name suggests, it is a prescribed structure,
a framework, for the conduct of government. In designing that structure, the Framers
themselves considered how much commingling was, in the generality of things, acceptable,
and set forth their conclusions in the document. That is the meaning of the statements
concerning acceptable commingling made by Madison in defense of the proposed Constitution,
and now routinely used as an excuse for disregarding it. When he said, as the Court
correctly quotes, that separation of powers "`d[oes] not mean that these [three] departments
ought to have no partial agency in, or no controul over the acts of each other,'"
ante, at 380-381, quoting The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961),
his point was that the commingling specifically provided for in the structure that
he and his colleagues had designed - the Presidential veto over legislation, the Senate's
confirmation of executive and judicial officers, the Senate's ratification of treaties,
the Congress' power to impeach and remove executive and judicial officers - did not
violate a proper understanding of separation of powers. He would be aghast, I think,
to hear those words used as justification for ignoring that carefully designed structure
so long as, in the changing view of the Supreme Court from time to time, "too much
commingling" does not occur. Consideration of the degree of commingling that a particular
disposition produces may be appropriate at [488 U.S. 361, 427] the margins, where
the outline of the framework itself is not clear; but it seems to me far from a marginal
question whether our constitutional structure allows for a body which is not the Congress,
and yet exercises no governmental powers except the making of rules that have the
effect of laws.
I think the Court errs, in other words, not so much because it mistakes the degree
of commingling, but because it fails to recognize that this case is not about commingling,
but about the creation of a new Branch altogether, a sort of junior-varsity Congress.
It may well be that in some circumstances such a Branch would be desirable; perhaps
the agency before us here will prove to be so. But there are many desirable dispositions
that do not accord with the constitutional structure we live under. And in the long
run the improvisation of a constitutional structure on the basis of currently perceived
utility will be disastrous.
I respectfully dissent from the Court's decision, and would reverse the judgment
of the District Court.
[ Footnote î ] ERRATA: "(1986)" should be "(1935)".
[ Footnote 1 ] It is even arguable that the Commission has authority to establish
guidelines and procedures for imposing the death penalty, thus reinstituting that
sanction under federal statutes for which (by reason of our recent decisions) it has
been thought unusable because of constitutionally inadequate procedures. The Justice
Department believes such authority exists, and has encouraged the Commission to exercise
it. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, 1256 (CA9 1988).
[ Footnote 2 ] An executive agency can, of course, be created with no power other
than the making of rules, as long as that agency is subject to the control of the
President and the President has executive authority related to the rulemaking. In
such circumstances, the rulemaking is ultimately ancillary to the President's executive
powers.
[ Footnote 3 ] There are of course agencies within the Judicial Branch (because they
operate under the control of courts or judges) which are not themselves courts, see,
e. g., 28 U.S.C. 601 et seq. (Administrative Office of the United States Courts),
just as there are agencies within the Legislative Branch (because they operate under
the control of Congress) which are not themselves Senators or Representatives, see,
e. g., 31 U.S.C. 701 et seq. (General Accounting Office). But these agencies, unlike
the Sentencing Commission, exercise no governmental powers, that is, they establish
and determine neither private rights nor the prerogatives of the other Branches. They
merely assist the courts and the Congress in their exercise of judicial and legislative
powers. [488 U.S. 361, 428]