Mistretta v. United States, 488 U.S. 361; 109 S. Ct. 647; 102 L. Ed. 2d 714 (1989)

Facts—The Sentencing Reform Act of 1984 created a Sentencing Commission consisting of seven members appointed by the president, and including three federal judges. Indicted for a cocaine sale, Mistretta challenged the commission as a violation of separation of powers and an excessive delegation of legislative powers. A U.S. District Court in Missouri rejected this plea that both parties appealed to the U.S. Supreme Court before judgment by the Eighth Circuit Court of Appeals.

Questions—(a) Does the law creating the Sentencing Commission delegate impermissible legislative power?

(b) Does the establishment of the Sentencing Commission violate the doctrine of separation of powers?

Decisions—(a) No; (b) No.

Reasons—J. Blackmun (8–1). The Sentencing Commission was created after concerns were expressed about wide disparities in sentencing and the uncertainties that these disparities created. The commission was designed to devise such guidelines. The non delegation doctrine was not designed to prevent Congress “from obtaining the assistance of its coordinate Branches.” The doctrine does not prohibit all delegation but simply provides that in making delegations, the legislature should provide “an intelligible principle to which the person or body authorized to [exercise the delegate authority] is directed to conform.” In this case the Congress directed the commission to consider seven factors related to offense categories and even more detailed guidance as to the characteristics of an offender. As to separation of powers, the Constitution does not mandate complete separation but was designed to prevent excessive accumulation of power within a single branch. Concerns over the Sentencing Commission constitute “‘more smoke than fire.’” The institution is “a peculiar institution within the framework of our Government,” but it is not illegal. There is no obstacle to placing such a commission within the judicial branch. The commission “is not a court” but “an independent agency in every relevant sense.” Placing the commission within the judicial branch has not increased the power of this branch. Although the Constitution contains an “incompatibility clause” prohibiting legislators from holding joint offices, there is “no comparable restriction” for judges who have performed extra[1]judicial functions throughout American history. Such appointments do not therefore violate the separation of powers. Judges on the commission serve voluntarily, and their service on the commission does not diminish their authority as judges. Although they may be removed from the commission under certain limited circumstances, they may not be removed from their judicial positions.

J. Scalia’s dissent argued that the “guidelines” developed by the commission “have the force and effect of laws.” Moreover, this “law making function” is “completely divorced from any responsibility for execution of the law or adjudication of private rights under the law.” Because the commission’s power is unaccountable, it is undemocratic. The Sentencing Commission does not so much commingle branches as create “a new Branch altogether, a sort of junior varsity Congress.” “And in the long run the improvisation of a constitutional structure on the basis of currently perceived utility will be disastrous.”

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