holding federal judges could not set on advisory panel investigating organized crime because imposition of powers interfered with their ability to perform their constitutionally delegated duties because it would necessarily impair their impartiality
How later courts described this case
- holding federal judges could not set on advisory panel investigating organized crime because imposition of powers interfered with their ability to perform their constitutionally delegated duties because it would necessarily impair their impartiality
- expressing fear that judges might favor particular government action recommended by a commission on which they or other federal judges serve
- subpoenas issued by President's Commission on Organized Crime enforceable even though Commission constituted in violation of separation of powers doctrine
- “[I]t would appear that the order given by the court is sufficient to eliminate the danger of such disclosure_”
Written by the judges who cited it.
The opinion
JOHNSON, Circuit Judge,
dissenting in part:
Although I concur in Sections I and II of the majority’s opinion, I must dissent from Section III, which holds the federal judges severable from the remainder of the Commission and affirms the judgment of the district court. While this approach may be appropriate when reviewing specific legislation, it is ill-suited to reviewing the composition of an executive advisory committee. The doctrine of “severance” propounded in Regan v. Time, — U.S.-, 104 S.Ct. 3262 , 82 L.Ed.2d 487 (1984), reflects judicial deference to the enactments of Congress and to the legislative history of a particular statute, neither of which is applicable here. Id. at 3269-70 . Moreover, severance is rendered inappropriate in this case by the fact that legal action is often taken pursuant to a single provision of a statute, and finding one provision of a statute unconstitutional does not, therefore, invalidate actions taken under another. By contrast, as the majority explains, the Commission acts as a body. It is impossible to identify in, or more importantly, to exclude from prior actions of that body the influence of the two Article III judges who are members of the Commission.
I must also reject the majority’s attempt to accord de facto legitimacy to the Commission’s actions under the approach prescribed in Buckley v. Valeo, 424 U.S. 1, 142 , 96 S.Ct. 612, 693 , 46 L.Ed.2d 659 (1976). The Buckley approach, which was formulated in response to a violation of the Appointments Power, Article II, Section 2, cl. 2, is inapplicable here. In Buckley , the problem was not that any member of the Federal Election Commission was unfit, by reason of other governmental duties, to exercise his powers; the problem there was simply that the members of the Commission had been appointed by the Congress rather than the President. Because the reconstitution of the Federal Election Commission did not require an alteration in its membership, and cast no doubt on the continuing viability of the actions it had taken, the conferral of de facto validity was a plausible solution. 1 Here, where the reconstitution of the President’s Commission in accordance with Separation of Powers principles requires an alteration in its membership, it would be improper for this Court to second guess the influence of the disqualified members of the Commission, by according de facto validity to its prior actions in connection with Scaduto.
Thus, I believe we have no choice but to hold all prior actions of the Commission in its attempt to secure Scaduto’s testimony invalid and to reverse the judgment of the district court.
. The Buckley Court may have been mistaken, however, in taking its remedial bearings from the reapportionment cases. See id. at 142 , 96 S.Ct. at 693 . These cases imposed de facto validity on the legislation enacted by legislatures elected from malapportioned districts, because to do otherwise would have ”produce[d] chaos." Ryan v. Tinsley, 316 F.2d 430, 432 (10th Cir.1963). It is unclear that chaos would have resulted from the invalidation of the prior acts of the Federal Election Commission, and it surely will not result from the invalidation of the acts of the President’s Commission on Organized Crime in connection with Scaduto.