Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Supreme Court has struck down congressional attempts to reassign constitutional functions from one branch of government to another branch, but has “upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment.” 1 In Mistretta v. United States, the Supreme Court rejected a separation of powers challenge to legislation establishing the U.S. Sentencing Commission.2 Through the Sentencing Reform Act of 1984, Congress created the Sentencing Commission as an independent agency in the Judicial Branch tasked with promulgating sentencing guidelines for federal judges to use when sentencing convicted offenders.3 Under the Act, three Sentencing Commission members must be Article III judges. The President appoints all seven Commission members and can remove any member for cause.4 In Mistretta, a criminal defendant sought to have the Sentencing Guidelines the Commission promulgated ruled unconstitutional, arguing in part that the Commission was constituted in violation of the doctrine of separation of powers.5

Upholding the constitutionality of establishing the Sentencing Commission as an independent body in the Judicial Branch, the Court acknowledged that the Commission is not a court and does not exercise judicial power.6 Rather, its membership includes both judges and nonjudges, and its work has a “significantly political nature.” 7 However, the Court held that the question of the Commission’s constitutionality turns not on formal distinctions between “political” and “judicial” functions, but rather on a practical inquiry whether the agency’s structure “undermin[es] the integrity of the Judicial Branch” or “expand[s] the powers of the Judiciary beyond constitutional bounds.” 8 The Court held that “the placement of the Sentencing Commission in the Judicial Branch has not increased the Branch’s authority” because, “[p]rior to the passage of the Act, the Judicial Branch . . . decided precisely the questions assigned to the Commission: what sentence is appropriate to what criminal conduct under what circumstances.” 9 The Court also rejected the challenger’s contention that participating in policymaking would inevitably weaken the Judiciary. The Court noted that “Congress placed the Commission in the Judicial Branch precisely because of the Judiciary’s special knowledge and expertise” with respect to sentencing, and concluded that this arrangement could not “possibly be construed as preventing the Judicial Branch ‘from accomplishing its constitutionally assigned functions.’” 10 The Court further held that “the principle of separation of powers does not absolutely prohibit Article III judges from serving on [non-judicial] commissions” such as the Sentencing Commission or from sharing power on the Commission with members who are not judges.11

Footnotes

1

Mistretta v. United States, 488 U.S. 361, 383 (1989).

2

488 U.S. 361.

3

The Sentencing Reform Act was enacted as chapter II of the Comprehensive Crime Control Act, Title II of Pub. L. No. 98–473, 98 Stat. 1976 (1984).

4

28 U.S.C. § 991.

5

488 U.S. at 370. The challenger also asserted that Congress delegated excessive authority to the Commission to structure the Guidelines. See id. For additional discussion of Mistretta, see ArtI.S1.3.2 Functional and Formalist Approaches to Separation of Powers; ArtI.S1.6.1 Criminal Statutes and Nondelegation Doctrine.

6

Mistretta, 488 U.S. 361 at 384–85.

7

Id. at 393.

8

Id. at 393.

9

Id. at 395.

10

Id. at 395–96 (quoting Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977)).

11

Id. at 404, 408.