Mistretta v. United States

*413 Justice Scalia,

dissenting.

While the products of the Sentencing Commission’s labors have been given the modest name “Guidelines,” see 28 U. S. C. §994 (a)(1) (1982 ed., Supp. IV); United States Sentencing Commission Guidelines Manual (June 15, 1988), they have the force and effect of laws, prescribing the sentences criminal defendants are to receive. A judge who disregards them will be reversed, 18 U. S. C. §3742 (1982 ed., Supp. IV). I dissent from today’s decision because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws.

I

There is no doubt that the Sentencing Commission has established significant, legally binding prescriptions governing application of governmental power against private individuals — indeed, application of the ultimate governmental power, short of capital punishment. 1 Statutorily permissible sentences for particular crimes cover as broad a range as zero years to life, see, e. g., 18 U. S. C. § 1201 (1982 ed. and Supp. IV) (kidnaping), and within those ranges the Commission was given broad discretion to prescribe the “correct” sentence, 28 U. S. C. §994 (b)(2) (1982 ed., Supp. IV), Average prior sentences were to be a starting point for the Commission’s inquiry, § 994(m), but it could and regularly did deviate from those averages as it thought appropriate. It chose, for example, to prescribe substantial increases over average prior sentences for white-collar crimes such as public corruption, antitrust violations, and tax evasion. Guidelines, *414 at 2.31, 2.133, 2.140. For antitrust violations, before the Guidelines, only 39% of those convicted served any imprisonment, and the average imprisonment was only 45 days, id., at 2.133, whereas the Guidelines prescribe base sentences (for defendants with no prior criminal conviction) ranging from 2-to-8 months to 10-to-16 months, depending upon the volume of commerce involved. See id., at 2.131, 5.2.

The Commission also determined when probation was permissible, imposing a strict system of controls because of its judgment that probation had been used for an “inappropriately high percentage of offenders guilty of certain economic crimes.” Id., at 1.8. Moreover, the Commission had free rein in determining whether statutorily authorized fines should be imposed in addition to imprisonment, and if so, in what amounts. It ultimately decided that every nonindigent offender should pay a fine according to a schedule devised by the Commission. Id., at 5.18. Congress also gave the Commission discretion to determine whether 7 specified characteristics of offenses, and 11 specified characteristics of offenders, “have any relevance,” and should be included among the factors varying the sentence. 28 U. S. C. §§ 994 (c), (d) (1982 ed., Supp. IV). Of the latter, it included only three among the factors required to be considered, and declared the remainder not ordinarily relevant. Guidelines, at 5.29-5.31.

It should be apparent from the above that the decisions made by the Commission are far from technical, but are heavily laden (or ought to be) with value judgments and policy assessments. This fact is sharply reflected in the Commission’s product, as described by the dissenting Commissioner:

“Under the guidelines, the judge could give the same sentence for abusive sexual contact that puts the child in fear as for unlawfully entering or remaining in the United States. Similarly, the guidelines permit equivalent sentences for the following pairs of offenses: drug *415 trafficking and a violation of the Wild Free-Roaming Horses and Burros Act; arson with a destructive device and failure to surrender a cancelled naturalization certificate; operation of a common carrier under the influence of drugs that causes injury and alteration of one motor vehicle identification number; illegal trafficking in explosives and trespass; interference with a flight attendant and unlawful conduct relating to contraband cigarettes; aggravated assault and smuggling $11,000 worth of fish.” Dissenting View of Commissioner Paul H. Robinson on the Promulgation of the Sentencing Guidelines by the United States Sentencing Commission 6-7 (May 1, 1987) (citations omitted).

Petitioner’s most fundamental and far-reaching challenge to the Commission is that Congress’ commitment of such broad policy responsibility to any institution is an unconstitutional delegation of legislative power. It is difficult to imagine a principle more essential to democratic government than that upon which the doctrine of unconstitutional delegation is founded: Except in a few areas constitutionally committed to the Executive Branch, the basic policy decisions governing society are to be made by the Legislature. Our Members of Congress could not, even if they wished, vote all power to the President and adjourn sine die.

But while the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by the courts. Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree. As Chief Justice Taft expressed the point for the Court in the landmark case of J. W. Hampton, Jr., & Co. v. United *416 States, 276 U. S. 394, 406 (1928), the limits of delegation “must be fixed according to common sense and the inherent necessities of the governmental co-ordination.” Since Congress is no less endowed with common sense than we are, and better equipped to inform itself of the “necessities” of government; and since the factors bearing upon those necessities are both multifarious and (in the nonpartisan sense) highly political — including, for example, whether the Nation is at war, see Yakus v. United States, 321 U. S. 414 (1944), or whether for other reasons “emergency is instinct in the situation,” Amalgamated Meat Cutters and Butcher Workmen of North America v. Connally, 337 F. Supp. 737, 752 (DC 1971) (three-judge court) — it is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law. As the Court points out, we have invoked the doctrine of unconstitutional delegation to invalidate a law only twice in our history, over half a century ago. See Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). What legislated standard, one must wonder, can possibly be too vague to survive judicial scrutiny, when we have repeatedly upheld, in various contexts, a “public interest” standard? See, e. g., National Broadcasting Co. v. United States, 319 U. S. 190, 216-217 (1943); New York Central Securities Corp. v. United States, 287 U. S. 12, 24-25 (1932).

In short, I fully agree with the Court’s rejection of petitioner’s contention that the doctrine of unconstitutional delegation of legislative authority has been violated because of the lack of intelligible, congressionally prescribed standards to guide the Commission.

II

Precisely because the scope of delegation is largely uncontrollable by the courts, we must be particularly rigorous in *417 preserving the Constitution’s structural restrictions that deter excessive delegation. The major one, it seems to me, is that the power to make law cannot be exercised by anyone other than Congress, except in conjunction with the lawful exercise of executive or judicial power.

The whole theory of lawful congressional “delegation” is not that Congress is sometimes too busy or too divided and can therefore assign its responsibility of making law to someone else; but rather that a certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its statutory commands, to determine — up to a point — how small or how large that degree shall be. Thus, the courts could be given the power to say precisely what constitutes a “restraint of trade,” see Standard Oil Co. of New Jersey v. United States, 221 U. S. 1 (1911), or to adopt rules of procedure, see Sibbach v. Wilson & Co., 312 U. S. 1, 22 (1941), or to prescribe by' rule the manner in which their officers shall execute their judgments, Wayman v. Southard, 10 Wheat. 1, 45 (1825), because that “lawmaking” was ancillary to their exercise of judicial powers. And the Executive could be given the power to adopt policies and rules specifying in detail what radio and television licenses will be in the “public interest, convenience or necessity,” because that was ancillary to the exercise of its executive powers in granting and policing licenses and making a “fair and equitable allocation” of the electromagnetic spectrum. See Federal Radio Comm’n v. Nelson Brothers Bond & Mortgage Co., 289 U. S. 266, 285 (1933). 2 Or to take examples closer to the case before us: Trial judges could be given the power to determine *418 what factors justify a greater or lesser sentence within the statutorily prescribed limits because that was ancillary to their exercise of the judicial power of pronouncing sentence upon individual defendants. And the President, through the Parole Commission subject to his appointment and removal, could be given the power to issue Guidelines specifying when parole would be available, because that was ancillary to the President’s exercise of the executive power to hold and release federal prisoners. See 18 U. S. C. §§ 4203 (a)(1) and (b); 28 CFR §2.20 (1988).

As Justice Harlan wrote for the Court in Field v. Clark, 143 U. S. 649 (1892):

“ ‘The true distinction ... is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.’” Id., at 693-694 (emphasis added), quoting Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 77 , 88-89 (1852).

“‘Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of the law.’” Id., at 694 (emphasis added), quoting Moers v. Reading, 21 Pa. 188, 202 (1853).

In United States v. Grimaud, 220 U. S. 506, 517 (1911), which upheld a statutory grant of authority to the Secretary of Agriculture to make rules and regulations governing use of the public forests he was charged with managing, the Court said:

*419 “From the beginning of the Government various acts have been passed conferring upon executive officers power to make rules and regulations — not for the government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power.” (Emphasis added.)

Or, finally, as Chief Justice Taft described it in Hampton & Co., 276 U. S., at 406 :

“The field of Congress involves all and many varieties of legislative action, and Congress has found it frequently necessary to use officers of the Executive Branch, within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations. ” (Emphasis added.)

The focus of controversy, in the long line of our so-called excessive delegation cases, has been whether the degree of generality contained in the authorization for exercise of executive or judicial powers in a particular field is so unacceptably high as to amount to a delegation of legislative powers. I say “so-called excessive delegation” because although that convenient terminology is often used, what is really at issue is whether there has been any delegation of legislative power, which occurs (rarely) when Congress authorizes the exercise of executive or judicial power without adequate standards. Strictly speaking, there is no acceptable delegation of legislative power. As John Locke put it almost 300 years ago, “[t]he power of the legislative being derived from •the people by a positive voluntary grant and institution, can be no other, than what the positive grant conveyed, which being only to make laws, and not to make legislators, the leg *420 islative can have no power to transfer their authority of making laws, and place it in other hands.” J. Locke, Second Treatise of Government 87. (R. Cox ed. 1982) (emphasis added). Or as we have less epigrammatically said: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark, supra, at 692 . In the present case, however, a pure delegation of legislative power is precisely what we have before us. It is irrelevant whether the standards are adequate, because they are not standards related to the exercise of executive or judicial powers; they are, plainly and simply, standards for further legislation.

The lawmaking function of the Sentencing Commission is completely divorced from any responsibility for execution of the law or adjudication of private rights under the law. It is divorced from responsibility for execution of the law not only because the Commission is not said to be “located in the Executive Branch” (as I shall discuss presently, I doubt whether Congress can “locate” an entity within one Branch or another for constitutional purposes by merely saying so); but, more importantly, because the Commission neither exercises any executive power on its own, nor is subject to the control of the President who does. The only functions it performs, apart from prescribing the law, 28 U. S. C. §§ 994 (a) (1), (3) (1982 ed., Supp. IV), conducting the investigations useful and necessary for prescribing the law, e. g., §§ 995(a) (13), (15), (16), (21), and clarifying the intended application of the law that it prescribes, e. g., §§ 994(a)(2), 995(a)(10), are data collection and intragovernmental advice giving and education, e. g., §§ 995(a)(8), (9), (12), (17), (18), (20). These latter activities — similar to functions performed by congressional agencies and even congressional staff — neither determine nor affect private rights, and do not constitute an exercise of governmental power. See Humphrey’s Executor v. United States, 295 U. S. 602, 628 (1935). And the Commis *421 sion’s lawmaking is completely divorced from the exercise of judicial powers since, not being a court, it has no judicial powers itself, nor is it subject to the control of any other body with judicial powers. The power to make law at issue here, in other words, is not ancillary but quite naked. The situation is no different in principle from what would exist if Congress gave the same power of writing sentencing laws to a congressional agency such as the General Accounting Office, or to members of its staff.

The delegation of lawmaking authority to the Commission is, in short, unsupported by any legitimating theory to explain why it is not a delegation of legislative power. To disregard structural legitimacy is wrong in itself — but since structure has purpose, the disregard also has adverse practical consequences. In this case, as suggested earlier, the consequence is to facilitate and encourage judicially uncontrollable delegation. Until our decision last Term in Morrison v. Olson, 487 U. S. 654 (1988), it could have been said that Congress could delegate lawmaking authority only at the expense of increasing the power of either the President or the courts. Most often, as a practical matter, it would be the President, since the judicial process is unable to conduct the investigations and make the political assessments essential for most policymaking. Thus, the need for delegation would have to be important enough to induce Congress to aggrandize its primary competitor for political power, and the recipient of the policymaking authority, while not Congress itself, would at least be politically accountable. But even after it has been accepted, pursuant to Morrison , that those exercising executive power need not be subject to the control of the President, Congress would still be more reluctant to augment the power of even an independent executive agency than to create an otherwise powerless repository for its delegation. Moreover, assembling the full-time senior personnel for an agency exercising executive powers is more difficult than borrowing other officials (or employing new officers on a *422 short-term basis) to head an organization such as the Sentencing Commission.

By reason of today’s decision, I anticipate that Congress will find delegation of its lawmaking powers much more attractive in the future. If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of “expert” bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research. This is an undemocratic precedent that we set — not because of the scope of the delegated power, but because its recipient is not one of the three Branches of Government. The only governmental power the Commission possesses is the power to make law; and it is not the Congress.

Ill

The strange character of the body that the Court today approves, and its incompatibility with our constitutional institutions, is apparent from that portion of the Court’s opinion entitled “Location of the Commission.” This accepts at the outset that the Commission is a “body within the Judicial Branch,” ante, at 385, and rests some of its analysis upon that asserted reality. Separation-of-powers problems are dismissed, however, on the ground that “[the Commission’s] powers are not united with the powers of the Judiciary in a way that has meaning for separation-of-powers analysis,” since the Commission “is not a court, does not exercise judicial power, and is not controlled by or accountable to members of the Judicial Branch,” ante, at 393. In light of the latter concession, I am at a loss to understand why the Commission is “within the Judicial Branch” in any sense that has relevance to today’s discussion. I am sure that Congress can *423 divide up the Government any way it wishes, and employ whatever terminology it desires, for nowconstitutional purposes — for example, perhaps the statutory designation that the Commission is “within the Judicial Branch” places it outside the coverage of certain laws which say they are inapplicable to that Branch, such as the Freedom of Information Act, see 5 U. S. C. § 552 (f) (1982 ed., Supp. IV). For such statutory purposes, Congress can define the term as it pleases. But since our subject here is the Constitution, to admit that that congressional designation “has [no] meaning for separation-of-powers analysis” is to admit that the Court must therefore decide for itself where the Commission is located for purposes of separation-of-powers analysis.

It would seem logical to decide the question of which Branch an agency belongs to on the basis of who controls its actions: If Congress, the Legislative Branch; if the President, the Executive Branch; if the courts (or perhaps the judges), the Judicial Branch. See, e. g., Bowsher v. Synar, 478 U. S. 714, 727-732 (1986). In Humphrey’s Executor v. United States, 295 U. S. 602 (1986), we approved the concept of an agency that was controlled by (and thus within) none of the Branches. We seem to have assumed, however, that that agency (the old Federal Trade Commission, before it acquired many of its current functions) exercised no governmental power whatever, but merely assisted Congress and the courts in the performance of their functions. See id., at 628. Where no governmental power is at issue, there is no strict constitutional impediment to a “branchless” agency, since it is only “[a]ll legislative Powers,” Art. I, § 1, “[t]he executive Power,” Art. II, § 1, and “[t]he judicial Power,” Art. Ill, § 1, which the Constitution divides into three departments. (As an example of a “branchless” agency exercising no governmental powers, one can conceive of an Advisory Commission charged with reporting to all three Branches, whose members are removable only for cause and are thus subject to the control of none of the Branches.) Over the years, however, *424 Humphrey’s Executor has come in general contemplation to stand for something quite different — not an “independent agency” in the sense of an agency independent of all three Branches, but an “independent agency” in the sense of an agency within the Executive Branch (and thus authorized to exercise executive powers) independent of the control of the President.

We approved that concept last Term in Morrison . See 487 U. S., at 688-691 . I dissented in that case, essentially because I thought that concept illogical and destructive of the structure of the Constitution. I must admit, however, that today’s next step — recognition of an independent agency in the Judicial Branch — makes Morrison seem, by comparison, rigorously logical. “The Commission,” we are told, “is an independent agency in every relevant sense.” Ante, at 393. There are several problems with this. First, once it is acknowledged that an “independent agency” may be within any of the three Branches, and not merely within the Executive, then there really is no basis for determining what Branch such an agency belongs to, and thus what governmental powers it may constitutionally be given, except (what the Court today uses) Congress’ say-so. More importantly, however, the concept of an “independent agency” simply does not translate into the legislative or judicial spheres. Although the Constitution says that “[t]he executive Power shall be vested in a President of the United States of America,” Art. II, § 1, it was never thought that the President would have to exercise that power personally. He may generally authorize others to exercise executive powers, with full effect of law, in his place. See, e. g., Wolsey v. Chapman, 101 U. S. 755 (1880); Williams v. United States, 1 How. 290 (1843). It is already a leap from the proposition that a person who is not the President may exercise executive powers to the proposition we accepted in Morrison that a person who is neither the President nor subject to the President’s control may exercise executive powers. But with *425 respect to the exercise of judicial powers (the business of the Judicial Branch) the platform for such a leap does not even exist. For unlike executive power, judicial and legislative powers have never been thought delegable. A judge may not leave the decision to his law clerk, or to a master. See United States v. Raddatz, 447 U. S. 667, 683 (1980); cf. Runkle v. United States, 122 U. S. 543 (1887). Senators and Members of the House may not send delegates to consider and vote upon bills in their place. See Rules of the House of Representatives, Rule VIII(3); Standing Rules of the United States Senate, Rule XII. Thus, however well established may be the “independent agencies” of the Executive Branch, here we have an anomaly beyond equal: an independent agency exercising governmental power on behalf of a Branch where all governmental power is supposed to be exercised personally by the judges of courts. 3

Today’s decision may aptly be described as the Humphrey’s Executor of the Judicial Branch, and I think we will live to regret it. Henceforth there may be agencies “within the Judicial Branch” (whatever that means), exercising governmental powers, that are neither courts nor controlled by courts, nor even controlled by judges. If an “independent agency” such as this can be given the power to fix sentences previously exercised by district courts, I must assume that a similar agency can be given the powers to adopt rules of pro *426 cedure and rules of evidence previously exercised by this Court. The bases for distinction would be thin indeed.

* * *

Today’s decision follows the regrettable tendency of our recent separation-of-powers jurisprudence, see Morrison, supra; Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787 (1987), to treat the Constitution as though it were no more than a generalized prescription that 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. The Constitution is not that. Rather, as its name suggests, it is a prescribed structure, a framework, for the conduct of government. In designing that structure, the Framers themselves considered how much commingling was, in the generality of things, acceptable, and set forth their conclusions in the document. That is the meaning of the statements concerning acceptable commingling made by Madison in defense of the proposed Constitution, and now routinely used as an excuse for disregarding it. When he said, as the Court correctly quotes, that separation of powers “ ‘d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over the acts of each other,’” ante, at 380-381, quoting The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961), his point was that the commingling specifically provided for in the structure that he and his colleagues had designed — the Presidential veto over legislation, the Senate’s confirmation of executive and judicial officers, the Senate’s ratification of treaties, the Congress’ power to impeach and remove executive and judicial officers — did not violate a proper understanding of separation of powers. He would be aghast, I think, to hear those words used as justification for ignoring that carefully designed structure so long as, in the changing view of the Supreme Court from time to time, “too much commingling” does not occur. Consideration of the degree of commingling that a particular disposition produces may be appropriate at *427 the margins, where the outline of the framework itself is not clear; but it seems to me far from a marginal question whether our constitutional structure allows for a body which is not the Congress, and yet exercises no governmental powers except the making of rules that have the effect of laws.

I think the Court errs, in other words, not so much because it mistakes the degree of commingling, but because it fails to recognize that this case is not about commingling, but about the creation of a new Branch altogether, a sort of junior-varsity Congress. It may well be that in some circumstances such a Branch would be desirable; perhaps the agency before us here will prove to be so. But there are many desirable dispositions that do not accord with the constitutional structure we live under. And in the long run the improvisation of a constitutional structure on the basis of currently perceived utility will be disastrous.

I respectfully dissent from the Court’s decision, and would reverse the judgment of the District Court.

It is even arguable that the Commission has authority to establish guidelines and procedures for imposing the death penalty, thus reinstituting that sanction under federal statutes for which (by reason of our recent decisions) it'has been thought unusable because of constitutionally inadequate procedures. The Justice Department believes such authority exists, and has encouraged the Commission to exercise it. See Gubiensio-Ortiz v. Kanahele, 857 F. 2d 1245, 1256 (CA9 1988).

An executive agency can, of course, be created with no power other than the making of rules, as long as that agency is subject to the control of the President and the President has executive authority related to the rulemaking. In such circumstances, the rulemaking is ultimately ancillary to the President’s executive powers.

There are of course agencies within the Judicial Branch (because they operate under the control of courts or judges) which are not themselves courts, see, e. g., 28 U. S. C. §601 et seq. (Administrative Office of the United States Courts), just as there are agencies within the Legislative Branch (because they operate under the control of Congress) which are not themselves Senators or Representatives, see, e. g., 31 U. S. C. § 701 et seq. (General Accounting Office). But these agencies, unlike the Sentencing Commission, exercise no governmental powers, that is, they establish and determine neither private rights nor the prerogatives of the other Branches. They merely assist the courts and the Congress in their exercise of judicial and legislative powers.