MISTRETTA v. UNITED STATES 488 U.S. 361 (1989)

inMistretta the Supreme Court, 8–1, upheld the Sentencing Reform Act of 1984 against the constitutional challenges that it was an unconstitutional delegation of power and that it violated the principle of separation of powers by intruding the federal judiciary into functions that are legislative.

Congress has the power to fix the sentence for a federal crime. Historically Congress has, in practical effect, delegated a considerable part of this power to the judicial branch through the mechanism of setting a range of possible sentences for the same offense—for example, one to five years of imprisonment. This scheme gives the judge authority to select the sentence appropriate in a particular case—typically including the possibility of probation—in light of the circumstances of the offense, the defendant's history and sense of responsibility, and the like. The possibility of a presidential pardon remained. In recent years, too, Congress allowed the judge to sentence the defendant to an indeterminate term, leaving the actual release date to the U.S. Parole Commission, an agency located in the executive branch. The system not only divided power among the three branches of the federal government, but also produced wide-ranging variation in the severity of sentences.

These disparities persisted despite the best efforts of sentencing institutes, judicial councils, and the Parole Commission. Concern for sentencing inequities, combined with a desire to express a tough attitude toward crime, led Congress to adopt the 1984 act. This act authorized the creation of the United States Sentencing Commission, "an independent commission in the judicial branch" composed of seven members appointed by the President with the advice and consent of the Senate. Three of the members must be federal judges chosen by the President from a list of six submitted by the judicial conference of the united states. The commission was authorized to prepare guidelines for essentially determinate sentencing, specifying sentences for various types of crimes and categories of defendants. A judge must adhere to the guidelines except when a case presents aggravating or mitigating circumstances of a kind not specified in the guidelines. The commission is to review and revise the guidelines periodically.

John Mistretta, sentenced on the basis of the guidelines by a federal district court for the sale of cocaine, appealed to the united states court of appeals and petitioned the Supreme Court for certiorari before judgment in the court of appeals. The Supreme Court granted the petition and affirmed the sentence. Justice harry a. blackmun, writing for the Court, quickly rejected Mistretta 's delegation of power challenge. Congress can constitutionally delegate its legislative power to an agency if it specifies clear standards for the agency to follow in carrying out its rule-making power. Congress gave the Sentencing Commission a clear set of specific goals, including lists of the factors to be considered in establishing grades of offense and categories of defendants. These lists leave considerable discretion to the commission, but the statute's standards are sufficiently clear to allow a reviewing court to determine whether the commission had followed the will of Congress.

Justice Blackmun wrote at greater length in rejecting the broader separation of powers challenge that the Sentencing Commission was a judicial body exercising legislative powers. The commission's work undoubtedly involved political judgment, but the practical consequences of locating the commission within the judicial branch did not threaten to undermine either the integrity of the judiciary or the power of Congress. On the question of locating the commission within the judicial branch, Justice Blackmun emphasized that the commission is not a court and does not exercise judicial power; that Congress can override the commission's determinations at any time; and that the questions assigned to the commission had long been exercised by the judiciary in the aggregate, deciding case by case.

Justice Blackmun found "somewhat troublesome" the participation in the commision of judges appointed under Article III of the Constitution. Nonetheless, he concluded that the constitution does not prohibit Article III judges from taking on extrajudicial functions in their individual capacities, that Congress and the President had historically aquiesced in federal judges' assumption of such duties, and that the Court's own precedents supported the constitutionality of the practice. Some kinds of extrajudicial service might have adverse effects on the public's sense of the judiciary's independence, but the commision's work was "essentially neutral" in the political sense and designed primarily to govern tasks done entirely within the judicial branch. Although the President could remove the commision members for neglect of duty or malfeasance, this power did not extend to the dismissal of federal judges as judges. Justice Blackmun made clear that there were limits to such extrajudicial services by judges of the constitutional courts, but he could find no constitutionally significant practical effect on the work of the judicial branch from these judge's service on this commision. The emphasis on "practical" and "functional" considerations is the central theme throughout Justice Blackmun's opinion.

justice antonin scalia dissented, arguing that Congress could not constitutionally delegate its legislative power to an agency whose sole power was to make laws, even laws going under the name of "guidelines." This opinion represents the strongest effort in the modern era to revive the delegation doctrine as a serious limit on congressional authority to enlist other agencies in lawmaking. Justice Scalia lamented the Court's tendency to tolerate blurring of the lines separating the powers of the three branches of the federal government. Scolding the majority in a manner now familiar, he offered a restatement of today's operative rule: "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." If we disregard the tone, this restatement seems exactly on the mark. Even so, it is not clear how the national government can be run on a formalistic model of separation of powers that already seemed too confining in 1794 when john jay, while he was Chief Justice of the United States, went to London to negotiate the agreement we now call jay ' streaty.

Kenneth L. Karst
(1992)