US v. Diaz, Crim. No. 87-00159.

• Citation: 685 F. Supp. 1213
• Decision Date: 11 May 1988
• Docket Number: Crim. No. 87-00159.
• Parties: UNITED STATES of America v. Hector DIAZ and Oscar Zubiaga.
• Court: U.S. District Court — Southern District of Alabama

685 F. Supp. 1213

UNITED STATES of America v. Hector DIAZ and Oscar Zubiaga.

Crim. No. 87-00159.

United States District Court, S.D. Alabama, S.D.

May 11, 1988.

Willie J. Huntley, Jr. and Gloria Bedwell, U.S. Atty's Office, Mobile, Ala., for U.S.

Gary L. Armstrong, Spanish Fort, Ala., for defendant Diaz.

John C. Brutkiewicz, Mobile, Ala., for defendant Zubiaga.

ORDER

HOWARD, District Judge.

This cause comes before the Court on a motion by the defendants, Hector Diaz and Oscar Zubiaga, to invalidate the new federal sentencing guidelines promulgated by the United States Sentencing Commission pursuant to the Sentencing Reform Act of 1984. The defendants were found guilty by a jury on January 25, 1988, of violating 21 U.S.C. § 963, 21 U.S.C. § 952(a), 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2, and are presently incarcerated awaiting sentencing. The defendants maintain that the guidelines are invalid for two reasons. First, the Sentencing Commission, which exercised legislative and executive powers in promulgating the guidelines, is improperly located in the judicial branch, violating the doctrine of separation of powers. Secondly, the Sentencing Reform Act of 1984 unconstitutionally mandates the service of at least three Article III judges on the Commission, also violating separation of powers principles. For the reasons that follow, the Court agrees that the portions of the Sentencing Reform Act establishing the Sentencing Commission and authorizing its work are unconstitutional and that the sentencing guidelines, promulgated by the Commission, are invalid.

I. The Commission and the Guidelines

The Sentencing Commission was established under the Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 211, 1984 U.S. Code Cong. & Ad.News (98 Stat.) 1987. This act constitutes chapter II of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Title II, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 1976. The relevant portions of the Sentencing Reform Act, establishing the Sentencing Commission, are codified at 28 U.S.C. §§ 991-998. The act establishes the Commission as an independent commission in the judicial branch of the government. 28 U.S.C. § 991(a). The Commission is composed of seven voting members, at least three of whom shall be federal judges. Id. Members of the Commission are appointed by the President and may be removed by him for neglect of duty, malfeasance in office or for other good cause shown. Id.

The Commission is responsible for establishing "sentencing policies and practices" for the federal criminal justice system. 28 U.S.C. § 991(b)(1). Specifically, the Commission is authorized to promulgate a set of guidelines to be used by federal courts to determine sentences to be imposed in criminal cases. 29 U.S.C. § 994(a)(1). The act enumerates a substantial list of factors that either shall or shall not be considered in promulgating the guidelines. 28 U.S.C. § 994(b)-(n).

The Commission has, in fact, promulgated a set of guidelines, which became effective for all crimes committed after November 1, 1987. The term "guidelines" is perhaps a misnomer, for federal judges must impose sentences within the ranges described by the guidelines unless special circumstances exist that were not adequately considered by the Commission. 18 U.S.C. § 3553(b). Thus, the guidelines, by prescribing sentences within narrow ranges for given crimes under given circumstances, substantially restrict the traditional discretion invested in judges in the sentencing process.

II. Placement of the Commission in the Judiciary

The defendants' objections to the creation of a commission in the judiciary exercising executive and legislative powers, and the service of judges on such a commission, raises two distinct but related questions. First, to what extent can executive or legislative powers be delegated to the judiciary? Secondly, to what extent may active judges serve on bodies exercising executive or legislative powers, regardless of where in the government the bodies are located? These questions will be addressed in turn.

Under the doctrine of separation of powers, our government is composed of three separate but coequal branches. As a general rule, "the Legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or judicial power; the judiciary cannot exercise either executive or legislative power." Springer v. Philippine Islands, 277 U.S. 189, 201-02, 48 S.Ct. 480, 482, 72 L.Ed. 845 (1928). See also J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). With respect to the judiciary, James Madison opined:

Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, and the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

The Federalist No. 47, p. 299 (G.P. Putnam's Sons ed. 1908).

The Supreme Court, however, has recognized that "the separate powers were not intended to operate with absolute independence." United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974). As Justice Jackson stated in a concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952):

While the Constitution diffuses power the better to secure liberty, it also contemplated that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

Thus, the Supreme Court has consistently upheld delegations of legislative authority by Congress to the executive branch or to agencies independent of any branch, provided that Congress articulates an "intelligible principle" to which the agency is directed to conform. National Cable Television Association, Inc. v. United States, 415 U.S. 336, 342, 94 S.Ct. 1146, 1150, 39 L.Ed.2d 370 (1974); see also Yakus v. United States, 321 U.S. 414, 426-27, 64 S.Ct. 660, 668, 88 L.Ed. 834 (1944) (cases cited therein).¹

Nevertheless, the Supreme Court has been far less inclined to permit the delegation of executive or legislative authority to the judiciary. In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Court acknowledged that "executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution." Id. at 123, 96 S.Ct. at 684 (citing United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 40 (1852); Hayburn's Case, 2 U.S. (2 Dall.) 409, 1 L.Ed. 436 (1892)). More recently, relying on the language in Buckley, the Court of Appeals for the District of Columbia Circuit struck down the Ethics in Government Act because a special Article III court under the act was invested with the executive responsibilities of appointing and supervising an independent counsel with prosecutorial responsibilities. In re Sealed Case, 838 F.2d 476 (D.C.Cir.1988). As the court noted, "Of the three branches, it is the role of the judiciary that the Constitution most clearly and tightly confines within narrow borders." Id. at 516.

The judicial power has traditionally been limited to deciding "cases" or "controversies". U.S. Const. art. III, § 2. The Supreme Court has described the judicial function as "the duty of interpreting and applying (laws) in cases properly brought before the courts." Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923). The courts "determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction." Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 255, 55 L.Ed. 246 (1911). Federal courts must "carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to them by the Constitution." Id. at 355, 31 S.Ct. at 253 (citation omitted).

The Sentencing Reform Act improperly delegates to the judiciary powers that belong to the legislature. The Act establishes the Sentencing Commission as an independent commission within the judiciary and authorizes the commission to establish sentencing policies and practices and promulgate sentencing guidelines to be applied in federal courts nationwide. The task of promulgating the guidelines is essentially an administrative rulemaking task, legislative in nature. The Supreme Court has traditionally referred to administrative rulemaking as a "quasi-legislative" process. See Humphrey's Executor v. United States, 295 U.S. 602, 628, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935); Buckley, 424 U.S. at 133, 96 S.Ct. at 688-89. More recently, the Court has been inclined to treat administrative rulemaking under authority delegated by Congress as a proper function of the executive. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 953 n. 16, 103 S.Ct. 2764, 2785 n. 16, 77 L.Ed.2d 317 (1983). Whether performed by the legislature or the executive, however, administrative rulemaking is essentially lawmaking, which is not a proper function of the judiciary.

The Supreme Court, in Keller v. Potomac Electric Power Co., 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731 (1923), has compared the judicial and legislative functions as follows:

A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.

Id. at 440-41, 43 S.Ct. at 448 (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)).

In promulgating the sentencing guidelines, the Commission looked to the future and...