inter-branch involvements in those cases could not pass muster, it is difficult to see how the much broader intrusion taking place here can be held to be consistent with the Constitution.
It is, finally, not without significance that the Department of Justice, speaking for the Executive Branch, has expressed its own considered opinion that the Sentencing Commission cannot constitutionally survive as a part of the Judicial Branch.
This Court holds, consistently with the precedents cited above, that the Sentencing Act and the Commission's guidelines constitute an infringement by an agency of the Judicial Branch of the responsibilities of the Congress and hence a violation of the principle of the separation of powers.
B. The Result is No Different if the Sentencing Commission is Sought to be Reassigned to the Executive Branch
The Department of Justice contends that "this case would be straightforward, except [for the fact that] Congress designated the Commission 'an independent commission in the judicial branch . . .,'" Memorandum at 3, and it suggests that the Court should simply disregard that part of the statute which places the Commission in the Judiciary and on its own assign the Commission to the Executive Branch. The Court now turns to that proffered solution.
1. The Court May Not Rewrite the Act
First. The Department of Justice cites no authority for its assumption that the courts have the authority to disregard the congressional decision to place the Sentencing Commission in the Judicial Branch. Such an arrogation of authority would be imprudent and might be invalid even if the congressional decision in that regard had been a mere oversight, a minor slip in a legislative process deeply concerned with other issues. See Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 106 S. Ct. 3245, 3252, 3255, 92 L. Ed. 2d 675 (1986) (courts may not rewrite statutes to avoid constitutional question). But the legislative history of the Act demonstrates that Congress made a very conscious decision to place the Commission in the Judicial Branch. To cite but one prominent example, in the section by section analysis, the Senate Committee on the Judiciary stated that "placement of the Commission in the judicial branch is based on the Committee's strong feeling that, even under this legislation, sentencing should remain primarily a judicial function." S. Rep. No. 98-225, 98th Cong., 1st Sess. 159 (1983). See also id. at 63, 163.
Second. The Department of Justice assumes throughout its papers that placement of the Commission in the Judicial Branch was merely an exercise in labelling without "real world" consequences. In fact, it is one of the Department's key assumptions that for constitutional purposes, "the statutory designation -- or 'label' -- of the Commission is without any legally operative significance." Memorandum at 4. That assumption, too, is in error.
Among the consequences flowing from a unilateral rectification by the courts of what the Department of Justice regards as the Congress' unfortunate error would be (1) the application to the Commission of the Freedom of Information Act, 5 U.S.C. § 552, the Privacy Act, 5 U.S.C. § 552a, and the Federal Advisory Committee Act, 5 U.S.C. App. 2, all of which govern executive but not judicial agencies; (2) the vesting in the President of the power to reduce the Commission's budget;
(3) the application to the Commission staff of such laws as the conflict of interest statutes, e.g., 18 U.S.C. §§ 207, 208, prohibitions on discrimination, 42 U.S.C. § 2000e-16(a), and various civil service laws, 5 U.S.C. §§ 2102-03; and (4) the inability of the judge-members of the Commission to sit on any cases which involve any part of the Executive Branch. In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 75 S. Ct. 623 (1955).
The Department of Justice's proposal that the courts disregard the deliberate congressional decision with respect to the placement of the Sentencing Commission in the Judicial Branch is so audacious that the courts would be acting far beyond their lawful authority were they to carry it out.
2. Even as Rewritten, the Act Would be Invalid
If the Court were to rewrite the statute in accordance with the Justice Department request, that would surely disentangle the law from the infirmities discussed in Part II-A, supra, but the surgery would not achieve the Department's objective to save the statute. The plain fact is that the Act mandates such a tight amalgam of inter-branch responsibilities and inter-branch personnel assignments that placement of the Sentencing Commission in the Executive Branch would raise as many constitutional problems as it would solve.
As noted above, the function of the Judicial Branch is to decide cases or controversies. Accordingly, the Supreme Court has repeatedly refused to allow Article III judges to pass on claims that would be reviewable by Executive officials or by Congress. See, e.g., Hayburn's Case, 2 U.S. (2 Dall.) 409, 1 L. Ed. 436 (1851); United States v. Ferreira, 54 U.S. (13 How.) 40, 46-51, 14 L. Ed. 42 (1851).
It is settled, therefore, that executive or administrative duties of a non-judicial character may not be imposed upon Article III judges. Buckley v. Valeo, supra, 424 U.S. at 123; Glidden Co. v. Zdanok, supra, 370 U.S. at 538-41.
Yet that is precisely what the Sentencing Act does. Three of the members of the seven-member Commission are required by the statute to be federal judges, and these judges, like the other commissioners, carry out what the Department of Justice regards as the Executive responsibilities of the Commission.
Although several appellate opinions support the validity of the service of judges on Executive Branch advisory committees, no case sanctions such service in positions of an operational or policy-making nature. In two Organized Crime Commission cases,
the Third and the Eleventh Circuits upheld the validity of the service on that commission of two federal judges out of nineteen members. In both cases, the courts made it abundantly clear, however, that, as Judge Roney stated in his concurrence in Scaduto, the service of the federal judges could be justified, if at all, only because the crime commission could only "advise and recommend" and that it had "no autonomous authority to impose sanctions or implement final binding action." 763 F.2d at 1205.
As noted above, the powers of the Sentencing Commission are of a different character and quality entirely.
The Department of Justice further argues, based upon language in Scarfo, supra, that the service of judges on executive agencies presents no problem as long as that service is voluntary. When that occurs, says the Department, the judge is acting as a citizen, not a judge. Aside from the fact that the cited case does not support the Department's contention,
the argument proves too much.
If the Department is right, there could be no valid constitutional objection to the "voluntary" service of a federal judge in addition to his active judicial service on, say, the Securities and Exchange Commission, or as National Security Advisor to the President, or as Secretary of Education. Surely the Constitution and its separation of powers doctrine do not countenance so strange a departure from traditional roles. See Buckley v. Valeo, supra.
The Department's argument reveals a misunderstanding of the status of judges and the need to keep them, to the fullest extent possible, from areas of public and private life that could give rise to impropriety or its appearance. If it is improper for a judge to serve as a trustee or guardian, to act as an arbitrator, or to be an officer in a business enterprise,
among others, it cannot be proper for him to divide his day between writing the regulations of the Federal Communications Commission in the mornings and judging the validity of regulations of the Federal Trade Commission in the afternoons, or between managing the Federal Bureau of Investigation one week and presiding over the criminal trials of defendants apprehended by federal law enforcement agencies the next.
Finally, placement of the Commission in the Executive Branch would violate separation of powers principles in yet another way. The Executive Branch is, of course, the branch of government that prosecutes criminal charges. It is not only unseemly but functionally entirely inconsistent with the philosophy underlying the doctrine of the separation of powers to combine in the same body and the same branch of government the persons who prosecute criminal defendants and the supposedly impartial commission that drafts, amends, and interprets the code that governs the equally impartial sentencing decisions of the federal judges.
Improper Delegation of Authority
Another defect inherent in the Act is that it unconstitutionally delegates legislative authority to the Commission. Strictly speaking, the delegation doctrine, too, is rooted in the principle of separation of powers that underlies the three-branch system of government established by the Constitution. Synar v. United States, 626 F. Supp. 1374, 1383 (D.D.C. 1986) (three-judge court), aff'd sub nom., Bowsher v. Synar, supra. However, the delegation issue has generally be considered by courts and text writers on a separate basis.
Although the Supreme Court, in several celebrated opinions, struck down various New Deal laws on delegation grounds,
since the 1930s and the creation of a number of the large independent regulatory agencies, attacks on the delegation of legislative authority have not found the courts to be hospitable.
The post-New Deal decisions upholding delegation have lost none of their vitality. The economy has become so complex and technical and scientific problems have become so unintelligible to the layman, educated or not, that regulation by executive agencies and independent commissions has become indispensable to modern government. Today's complex economic life in the United States could not receive the requisite governmental support and scrutiny that it deserves, and safety, consumer confidence, and financial stability -- to name just a few important values -- would be undermined if the existence of the regulatory commissions were to be struck down on improper delegation grounds. Thus, the delegation of legislative authority to Executive agencies is likely to remain with us. But the delegation at issue in this case is in a different category altogether than that which has been sustained in the past.
Here, unlike in almost all the prior instances of delegation of legislative power, the matters being delegated involve not the regulation of economic forces and factors but basic policy decisions of law enforcement, of criminal control, and of punishment. That this is a difference in quality and kind is obvious.
"The power to define criminal offenses and to prescribe the punishments. . . resides wholly with the Congress." Whalen v. United States, 445 U.S. 684, 689, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980); United States v. Wiltberger, 18 U.S. 76, 95, 5 L. Ed. 37 (1820); see also Gore v. United States, 357 U.S. 386, 393, 2 L. Ed. 2d 1405, 78 S. Ct. 1280 (1958). As Justice Brennan said in his concurrence in United States v. Robel, 389 U.S. 258, 276, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967), in the criminal law area, the "formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people."
Even under standards more generally applicable to delegation questions, the present Act would probably fail to pass muster, for Congress has given to the Sentencing Commission a mandate of such vagueness that it constitutes no real direction at all. Section 991(b)(1)(B) of the Act informs the Commission that it shall
provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities . . . while maintaining sufficient flexibility to permit individualized sentences when warranted . . .