US v. Eastland

• Decision Date: 08 September 1988
• Docket Number: No. 87 CR 948.,87 CR 948.
• Citation: 694 F. Supp. 512
• Parties: UNITED STATES of America, Plaintiff, v. Joseph Patrick EASTLAND, Defendant.
• Court: U.S. District Court — Northern District of Illinois

694 F. Supp. 512

UNITED STATES of America, Plaintiff, v. Joseph Patrick EASTLAND, Defendant.

No. 87 CR 948.

United States District Court, N.D. Illinois, E.D.

September 8, 1988.

Lisa Huestis, Barry Eldon, Asst. U.S. Attys., Chicago, Ill., for plaintiff.

Carol A. Brook, Lauren Weil, Federal Defender Program, Chicago, Ill., Terence F. MacCarthy, Executive Director, for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Currently before the Court is Joseph Patrick Eastland's motion to declare the new Sentencing Guidelines unconstitutional. For the reasons set forth below, we conclude that the Sentencing Guidelines are invalid under the non-delegation theory or, alternatively, as an excessive delegation.^*

As of July 20, 1988, 141 opinions or orders had been issued by various district courts around the country concerning the constitutionality of the Sentencing Guidelines. On different bases, a majority, 79-62, have found the Sentencing Guidelines unconstitutional. Considering the availability of these opinions, many of which contain an in-depth discussion of the Sentencing Reform Act's history and mechanics, we will avoid any further duplication and redundancy by confining our comments to an issue we believe has been inadequately addressed even by those courts which have found the Sentencing Guidelines unconstitutional. This issue is the non-delegation doctrine. We do, however, agree with the Ninth Circuit in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), that the Sentencing Guidelines are unconstitutional because of the placement of three sitting Article III judges on the Sentencing Commission. Accordingly, we adopt that portion of Gubiensio-Ortiz which holds the Sentencing Guidelines unconstitutional because of the presence of Article III judges on the Sentencing Commission. Nevertheless, we write further because we believe that not only should Article III judges not be engaged in setting criminal penalties, but that Congress alone must do this.

Eastland contends that Congress has improperly delegated to the Sentencing Commission the task of legislating law which affects fundamental liberty interests. We agree. Article I of the Constitution provides that "all legislative powers ... shall be vested in the Congress of the United States." U.S.Const. art. I, § 1. Further, Congress is empowered "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." U.S.Const. art. I, § 8 cl. 18.

The non-delegation doctrine is founded on the theory that Congress alone can exercise "the essentials of the legislative function, which are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct." Yakus v. United States, 321 U.S. 414, 424, 64 S.Ct. 660, 667, 88 L.Ed. 834 (1944). "Formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate." United States v. Robel, 389 U.S. 258, 276, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1976) (Brennan, J., concurring). More specifically, the non-delegation doctrine is regarded as essential to the preservation of two constitutional safeguards that protect each individual's liberty and property: congressional accountability and judicial review. United States v. Williams, 691 F.Supp. 36, 43 (M.D.Tenn.1988). Justice Harlan emphasized the importance of these safeguards in Arizona v. California:

The non-delegation principle ... serves two primary functions vital to preserving the separation of powers required by the Constitution. First, it insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people. Second, it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.

Arizona v. California, 373 U.S. 546, 626, 83 S.Ct. 1468, 1511, 10 L.Ed.2d 542 (1983) (Harlan, J., dissenting in part).

The Supreme Court has invalidated legislation on improper delegation grounds only in two cases, A.L.A. Schechter Poultry v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), and these cases are often criticized as the last vestige of the Supreme Court's "super legislature" period. Nonetheless, we ought not "shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority solely out of concern that we should thereby reinvigorate discredited constitutional doctrines of the pre-New Deal era." Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 686, 100 S.Ct. 2844, 2886, 65 L.Ed.2d 1010 (1980) (Rehnquist, J., concurring).

With this in mind, the initial question we must answer is what has Congress delegated in this case. Has it merely delegated the responsibility for drafting procedural rules concerning the criminal sentencing procedures or has it delegated to the Sentencing Commission the task of setting actual criminal sanctions, something that affects a fundamental liability interest of criminal defendants? If the former, then there would be no problem under the non-delegation doctrine (provided Congress set forth intelligible principles). However, if the latter, then there are problems. We conclude that Congress has attempted to delegate to the Sentencing Commission the legislative policymaking function of setting criminal sanctions. Accord, Gubiensio-Ortiz, 857 F.2d at 1254. Congress alone has the power to create federal criminal law. Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 2087, 85 L.Ed.2d 434 (1985). It is also indisputable "that the authority to define and fix the punishment for crime is legislative...." Ex Parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 74, 61 L.Ed. 129 (1916). The creation of a criminal code and the fixing of its punishment is a peculiarly legislative function because it involves the formulation of policy which is itself the "primary responsibility entrusted to ... Congress by the electorate." United States v. Robel, 389 U.S. 258, 276, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1967) (Brennan, J., concurring).

Although the Supreme Court has not invalidated a congressional delegation under the non-delegation doctrine since the Depression, congressional delegations involving fundamental rights — and liberty is of course a fundamental right — have come under closer scrutiny by the Supreme Court. The Court has recognized that, if an administrative action involves a fundamental right, the Court will not presume that Congress has attempted to delegate the power to regulate the exercise of that right without a "clear statement" of congressional intent. In Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), for example, the Court held that the Secretary of State could not deny passports to persons because of their membership in the Communist Party. Refusing to reach the constitutional issue, the Court determined that the individual's interest at stake was so fundamental that it could be infringed only with explicit congressional authorization: "If a `liberty' is to be regulated, it must be pursuant to the lawmaking functions of the Congress. And if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests. Where activities or enjoyment, natural and often necessary to the well-being of an American citizen ... are involved, we will construe narrowly all delegated powers that curtail or dilute them." Id. at 129, 78 S.Ct. at 1120.

In Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), the Court refused to find an implicit congressional delegation of authority to the Department of Defense to administer a constitutionally questionable security clearance program. In striking down the program, the Court began by acknowledging that "the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the `liberty' and `property' concepts of the Fifth Amendment." Id. at 492, 79 S.Ct. at 1411. The Court then stated that delegations of authority to affect such an interest must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized, but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them. Id. at 507, 79 S.Ct. at 1419. The Court concluded that "such decisions ... cannot be assumed by acquiescence of non-action." Id.

Given this background, we find the court's synthesis in United States v. Williams, 691 F.Supp. at 44-47 (M.D.Tenn. 1988), of the Supreme Court's doctrine in this area helpful. In Williams, the court distilled the Supreme Court's treatment into four principles. First, the Supreme Court's decision in Kent and Greene teaches that if an administrative action implicates a fundamental right — such as the right to travel or to hold employment — Congress' statutory delegation must be scrutinized closely. If a narrow construction of the statute fails to indicate that Congress intended for the administrative agency to promulgate rules involving the fundamental rights, then those rules will be found to be unauthorized by statute. Such a finding avoids the question of whether Congress could under any circumstances delegate such power. Second, the Supreme Court...