ArtII.S2.C2.3.7 Creation of Federal Offices with Blended Features

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Supreme Court has recognized that the Constitution grants broad discretion to Congress to establish various offices across the federal government. Aside from Congress’s clear authority to create Executive Branch offices to be filled by officers that execute the law,1 as well as federal courts filled with judicial officers to adjudicate cases and controversies,2 Congress may sometimes merge features of various federal entities and establish unique agencies within the federal government. For instance, in the 1989 case of Mistretta v. United States, the Court ruled that the structure of the United States Sentencing Commission, an entity placed by Congress in the Judicial Branch and charged with promulgating sentencing guidelines for the federal courts, did not violate the separation of powers.3 The Commission was composed of seven voting members appointed by the President with Senate confirmation.4 The law required at least three members to be federal judges, and the President could remove Commission members for cause.5 The challenger in that case argued, among other things,6 that Congress’s delegation of power to the Judiciary, and individual Article III judges, to promulgate sentencing guidelines was unconstitutional as it enlisted the Judiciary in exercising legislative authority.7 In addition, the challenger argued that Congress had “eroded the integrity and independence of the Judiciary” by forcing Article III judges to share their power with non-judges and engage in the political work of promulgating sentencing guidelines. Further, while Article III judges enjoy constitutional protection from removal except for impeachment, here the statute required Article III judges to serve on the Commission subject to removal by the President.8

Acknowledging that the Commission constituted “an unusual hybrid in structure and authority” within the federal government, the Supreme Court upheld, in a vote of 8-1, the constitutionality of the Commission’s design and duties.9 In an opinion by Justice Harry Blackmun, the Court first examined whether creating an independent body, placed in the Judicial Branch, with the power to issue sentencing guidelines “vested in the Commission powers that are more appropriately performed by the other Branches or . . . undermine[d] the integrity of the judiciary.” 10 The Court noted that “Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary.” 11 Because judges have historically exercised discretion in sentencing decisions and the Judiciary has long exercised authority to issue rules “for carrying into execution [its] judgments,” the Court reasoned that Congress could combine these features in the Commission and entrust it with the power to promulgate sentencing guidelines.12 Although technically located in the Judicial Branch, the Commission’s powers, the Court observed, were not unconstitutionally “united with the powers of the Judiciary.” 13 The Commission was not a court, did not exercise judicial power, and was not controlled by the Judicial Branch; instead, the Commission was an independent agency accountable to Congress and its members were removable by the President.14 In addition, placement of the Commission in the Judicial Branch did not increase that branch’s authority.15 Judges had historically decided sentencing questions in individual cases; the Commission simply did this via the promulgation of sentencing guidelines.16

The Court next turned to the composition of the Commission and concluded that its design did not undermine the integrity of the Judicial Branch.17 The service of three federal judges on the Commission, though “somewhat troublesome” in the eyes of the Court, did not on balance interfere with the integrity of the federal Judiciary as a whole.18 The Court looked to the early historical practices of the country and determined that Article III of the Constitution did not bar judges from undertaking certain extrajudicial duties.19 The judges on the Commission did not serve “pursuant to their status and authority as Article III judges, but solely because of their appointment by the President as the Act directs.” 20 The power wielded by the judges as Commissioners thus was not judicial in nature, but administrative, pursuant to the legislation creating the commission.21 The judges’ service did not ultimately undermine the impartiality of the Judiciary because the Commission’s task did “not enlist the resources or reputation of the Judicial Branch in either the legislative business of determining what conduct should be criminalized or the executive business of enforcing the law.” 22 Instead, the Commission was dedicated to promulgating rules for sentencing, a topic traditionally within the province of the Judiciary.23

Finally, the Court examined the extent of the President’s control over the Commission’s functioning.24 The Court determined that the President’s power to remove the Commissioners for cause did not “compromise the impartiality” of the Judiciary or prevent that branch from performing its constitutional function because, even if removed as a Commissioner, a judge retained the status of an Article III judge.25

See Myers, 272 U.S. 52, 129 (1926). back
U.S. Const. art. III, § 1; Judiciary Act of 1789, 1 Stat. 73 (codified as amended at 28 U.S.C. § 1350). back
488 U.S. 361, 412 (1989). back
28 U.S.C. § 991(a). back
Id. back
The Court also rejected the argument that the Commission’s structure violated the “nondelegation” doctrine. See ArtI.S1.5.2 Historical Background on Nondelegation Doctrine. back
Mistretta, 488 U.S. at 383. back
Id. at 384. back
Id. at 412. The Court also held that Congress’s grant of authority to the Commission did not violate the nondelegation doctrine. Id. at 379. back
Id. at 385. back
Id. at 388. back
Id. at 384–97. back
Id. at 393. back
Id. at 393–94. back
Id. at 395. back
Id. back
Id. at 397–408. back
Id. at 397. back
Id. at 398–99 ( “The first Chief Justice, John Jay, served simultaneously as Chief Justice and as Ambassador to England, where he negotiated the treaty that bears his name. Oliver Ellsworth served simultaneously as Chief Justice and as Minister to France. While he was Chief Justice, John Marshall served briefly as Secretary of State and was a member of the Sinking Fund Commission with responsibility for refunding the Revolutionary War debt.” ). back
Id. at 404. back
Id. back
Id. at 407–08. back
Id. back
Id. at 408–11. back
Id. at 409–11. back