Transcript

IN THE SUPREME COURT OF THE UNITED STATES

JOHN M. MISTRETTA, Petitioner v. UNITED STATES; and UNITED STATES, Petitioner v. JOHN M. MISTRETTA

No. 87-7028, No. 87-1904

October 5, 1988

The above-titled matter came on for oral argument before the Supreme Court of the United States 12:59 at o'clock p.m.

APPEARANCES:

ALAN B. MORRISON, ESQ., Washington, D.C., on behalf of the Petitioner/Respondent Mistretta.

CHARLES FRIED, ESQ., Solicitor General, U.S. Department of Justice, Washington, D.C., on behalf of the Respondent/Petitioner United States

PAUL M. BATOR, Chicago, Illinois, on behalf of the U.S. Sentencing Commission, as amicus curiae

PROCEEDINGS

12:59 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 87-7028, Mistretta v. the United States, and Number 87-1904, the United States v. Mistretta.

Mr. Morrison, you may proceed whenever you're ready.

ORAL ARGUMENT OF ALAN B. MORRISON ON BEHALF OF PETITIONER/RESPONDENT MISTRETTA

MR. MORRISON: Mr. Chief Justice, and may it please the Court, the question presented in this case is the Constitutionality of the Federal Sentencing Guidelines, or more precisely, the Constitutionality of the process by which those guidelines were issued.

To answer the question, it is necessary to know how the guideline system works, and what kind of judgments went into the guidelines.

In 1984, Congress instituted a new system of determinative sentencing. In that determinative sentencing system, it made sentencing guidelines the centerpiece. It also recognized that it could not--chose not to issue the guidelines itself. Rather, it designated in a statute of commission to do the job. The commission to consist of seven members, three of whom were required to be Article 3 Federal Judges, all of whom were appointed by the President with the advice and consent of the Senate, and no more than four of them could be members of the same political party.

Now, the term guidelines, which is what the commission is directed to issue, is something of a misnomer. These guidelines are not merely advisory. They are directions to sentencing judges with which the sentencing judges must comply, unless they find that there is a factor in the particular case which the sentencing commission did not adequately take into account. And If the sentencing judge diverts from the guidelines, either above or below the guideline, then the party -- either the defendant or the Government -- has a right of appeal on the grounds that the sentence was unreasonably either too high or too low.

Similarly for the first time ever, both defendant and the Government has a right to appeal if they allege that the Court selected an improper guideline or otherwise misapplied the guidelines.

There is no dispute between the parties that the guidelines constitute the law of sentencing for Federal defendants from November 1, 1987 on, which is the effective date for the guidelines for crimes committed after that date.

In order to determine whether the guidelines are consistent with separation of powers, it's necessary to examine the kind of judgments that the commission inevitably had to make in establishing a guidelines system.

The first question that the commission had to confront with respect to each of the crimes -- and this is not simply the Title XVIII, but all of the entire Federal criminal code, and other provisions in other parts of the United States Code -- where should the sentence be?

Congress told the commission that the sentencing range for each sentence could be no more than six months or 25 percent maximum to minimum jail time. So, for instance, for the crime of stealing a $500 Social Security check in the mail, the commission had to decide what the appropriate punishment was for that particular crime.

Did it matter the commission had to decide whether the thief was caught before he spent the money, or whether the amount of the check was not $500, but $1,000, and --

QUESTION: Mr. Morrison, was the commission circumscribed at all by the outside limits of the penalties already prescribed by law?

MR. MORRISON: Yes, your Honor. Yes, your Honor.

The commission also had to decide whether those similar kinds of monetary adjustments were appropriate for other kinds of crimes against property, for crimes such as tax evasion, for price fixing, securities fraud, and the like. Congress told the commission, "Start with the average sentences imposed in the past, but that you can move them up or down as you see fit in order to eliminate what Congress said were unwarranted disparities.

So, the commission had to decide what factors were properly aggravating and what properly mitigating in a particular crime to decide whether the particular differences were warranted or unwarranted. That is precisely the kind of process that sentencing judges used to do, before the commission issued its guidelines and they went into effect.

The second major task that the commission had to undertake was it had to rank the seriousness of disparate kinds of offenses. It was not simply enough to decide the absolute offence level for each crime, but as a practical matter, you had to rank the crimes in comparative degree of seriousness.

So for instance, the commission had to face questions rather like this: how should you punish the sale of six ounces of cocaine, the committing of perjury before Congress, bid rigging in excess of $50 million in Government contracts, the sale of $100 in pornographic materials, or conspiracy to violate the civil rights of a Black family.

The commission chose, within the statutory range of sentencing, to treat all of those disparate offenses basically the same, and that question of how to treat them was a question that they had to address, despite the very dissimilar facts surrounding each of the crimes.

It is of course not the function of the Court to decide whether those analogous sentences for different crimes is right or wrong. But it's important to note these because it indicates the kind of ranking of judgments that the commission made, these very heavily policy-oriented judgments that are plainly debatable, and that the terms of these debates are about values and about policies, and they are political in the best sense of the word -- the kinds of political choices that we normally expect will be made by our political branches.

This ranking of offenses, is inevitable, any time you have a base level system, which they had to have in this case, between 1 and 43. And while the guidelines themselves don't show the ranking, the equal ranking of disparate crimes, we have attached an addendue to our brief, which goes through each base level offense and shows you what the commission determined to be similar crimes and hence deserving of similar punishments.

There are, in short, no neutral principles that the commission could follow, except its own good sense and personal views about which crimes were more serious or less serious than the others. The commission recognized in a number of places that it was making policy decisions, most particularly in the policy decisions to substantially increase the amount of time which persons convicted of white-collar crime, such as tax evasion, public corruption, anti-trust violations, securities fraud, would spend in jail.

The third set of determinations, that the commission and to make was to decide who gets to go on probation and who doesn't get to go on probation. Under the statues, the commission was empowered to lay down the ground rules, and say below a certain level, probation is permissible, but above that level, it is not permissible. And the District Judge who sentences the individual is forbidden from giving probation to someone whom the commission said was not entitled to probation for that kind of crime, just as much as the District Judge is forbidden from going above or below the sentencing guidelines.

There is, I believe, a graphic example of the effect that the commission's judgments have on sentencing, and how the commission's judgments reflect its views about what kind of penalties are appropriate for what kind of crime. And The example I refer to is that of the recent sentence of Michael Deaver.

Mr. Deaver was convicted of committing three counts of perjury. Assume for simplicity it's only one count, because the guidelines become more confusing when there are multiple counts -- another matter which the commission had to deal with.

Now, under the commission's guidelines, a single count of perjury is a base level 12 offense. Because Mr. Deaver had no prior convictions, that would translate into a range of sentence between 10 and 16 months confinement. Under the commission's guidelines, alcoholism, which was a factor cited in mitigation, would not have been an excuse to go below the 10 months. It would have been a proper basis for the judge to consider, within the 10 to 16 month range.

Now, of that 10 months, the sentencing commission said five had to be spent in actual confinement -- no straight probation, actual confinement. And five could have been served in community confinement, which means a person can go out during the day and goes to a halfway house or similar facility in the evening.

In actuality, the District Judge in this case gave Mr. Deaver three years jail time, but suspended it entirely. Under the sentencing guidelines, he could not have done that. Now, again, the question is not which set of judgments is right or wrong, the sentencing commission's judgments or the District Court's judgments. The point for these purposes is to recognize that the judgment depends about your notions about this relative seriousness of the crime. What kind of offenses should people in all cases have to go to jail for? And this commission has made those judgments in every one of the cases in which it has written a sentencing guideline for.

QUESTION: You take the position that no commission, regardless of its composition, could have been given that power, I take it?

MR. MORRISON: That is the second argument we make. We make the argument on delegation as our second argument, given the definitions and the relatively few limits that Congress has placed upon the commission.

QUESTION: And if we disagree with you on that, then you fall back on the fact that it's the composition of the commission?

MR. MORRISON: Well, as your Honor notes, those are alternative arguments. We have placed the sentencing -- let me see, the separation of powers argument first in our brief because we believe it is a lesser argument -- that is to say, we don't have to say that necessarily you could never issue sentencing guidelines, but that this commission with this composition, these powers and these restrictions couldn't do it.

QUESTION: Well, would it make a difference if the law did not require that judges serve on the commission?

MR. MORRISON: It would make a difference depending upon whether judges were serving on the commission or not.

QUESTION: Well, what if the President under a law that didn't specify that judges would have to serve --and what if the President in fact asked some to serve, and they said, "All right, we will."

MR. MORRISON: In my view, that is un-Constitutional as well. That is not permissible, to have Article 3 judges serving on commission of this kind.

QUESTION: Even as true volunteers, when it isn't mandated?

MR. MORRISON: I think that -- yes, that is also correct, your Honor, because of the nature of the kind of choices that the commission was making.

The thrust of my submission that I have been making here in trying to describe the work of the commission is directly relevant on both the separation of powers issues -- because the Court has looked at the functions being performed -- as well as the delegation issue, and that factual predicate in this description directly bears on both of them, and not simply on the delegation issue, or on the separation of powers issue.

QUESTION: Well, what about Owen Roberts on the Pearl Harbor Commission, Earl Warren on the Warren Commission?

MR. MORRISON: I believe that all -- that many -- that those two are factually distinguishable on the grounds that they involved advice-giving and fact-finding. But the -- both the Government and the sentencing commission cite a number of historic examples about other kinds of activities undertaken by various justices at various times.

While I think there are some distinctions between that case and this one, principally because this one involves the making of law in a concrete situation -- the most important distinction for our purposes is that in none of those examples was the Constitutionality of the conduct ever taken to court, let alone was it reviewed under this Court's jurisprudence on separation of powers as it has evolved since Buckley in 1976.

QUESTION: Do you think that practice amounts to nothing in determining Constitutionality?

MR. MORRISON: I did not say that, your Honor. I would not agree that practice amounts to nothing.

I would point out, however, that there has been practice to the contrary. A number of Justices expressed extreme reservations about doing this, and while not directly citing separations of powers situations in all cases -- although Justice Stone has done so -- I would say that dating from the earliest days of our Republic, when as reported in United States v. Muskrat, President Washington asked Thomas Jefferson as Secretary of State to ask the Court for an opinion about the meaning of a treaty. Those -- the Justices declined to do so on the grounds that it was inappropriate.

I would suspect that it they had been asked in their individual capacities, as the respondent suggests, as opposed to their official capacity, the outcome should have teen the same.

So, I think that the history is by no means unified all in one direction, but more importantly, I believe that none of the cases ever involved activities of a concrete, far-reaching nature that affects 40,000 criminal defendants a year, as the activities of the sentencing commission do here.

QUESTION: Well, as long as we're giving you these examples, what about the Federal rules of evidence? Suppose that this Court had promulgated the Federal rules of evidence. Would that have been Constitutional?

MR. MORRISON: Well, let me divide the answer into two parts, If I may.

As to the rules not relating to privilege, I would say that there would be no difficulty, that those are very close to the rules of civil procedure. That is, of course, the line that Congress ultimately hit upon.

This Court did, in the early 1970's, pursuant to a Congressional grant, promulgate the rules of evidence, sent them forward to Congress. Congress saw them, stopped them from going into effect, and ultimately said, "You can't put them into effect as to privileges."

Now, dealing with the privileges, I would even divide that into two parts. It seems to me that it we are dealing with the privileges as applies to Federal law and Federal causes of action involving Federal matters, that the Court may have some limited authority there.

But what I believe you have, in the case of privileges, are principally questions of value judgments. Do we value the confidence between the husband and wife greater than we value the getting at truth? How do we value the attorney-client privilege -- not so much in the context of litigation, but in terms of pre-litigation matters?

And it is my view that that is a far closer question -- and I think if I had to come down on it, I would say that the Court could not do these -- at least certainly many of the privileges.

QUESTION: And is the historical occurrence that Congress old enact the privileges support for your position?

MR. MORRISON: Well, I would like to say yes, your honor, but I think that it probably had to do more with a recognition of the underlying nature of the controversies in the privilege area -- that is, we are dealing with policy choices that are more substantive in nature than procedural.

I recognize that in recent years the Court has said -- I mean, just last term -- that there is no single dividing line between substance and procedure. But, on the other hand, the Court has recognized in a number of cases when persons have tried to claim something as procedural to be able to drag it in on the judicial side, the Court has said, "No, we won't allow that to take place."

So, I think that the efforts to expand procedural have -- albeit in a different context -- have generally not met with favor, and I would think that they would not apply here to the evidence context as well.

Turning back to the work of the commission, the commission also had to deal with the question of fines within the statutory restrictions. The commission was given the discretion to decide under what circumstances fines should be imposed, when and how much.

Originally the commission thought about having an ability-to-pay fine system, or is the alternative, a system based on a multiplier of the amount of money lost. The commission is even now about to hold some hearings dealing with fines for organizations, principally corporate defendants.

But, in the end, as to individuals, it's set up a schedule under which all but the incident must pay fines in an amount within the range set forth in the schedule. So, turning back again to the Michael Deaver example, at the base level offense of 12, Mr. Deaver could have been required to pay a fine of between $3,000 and $30,000.

In fact, he was fined a $100,000, and again, the answer -- the question is, of course, not which set of fines is correct, but it shows how value-laden that part of the system is as well.

QUESTION: Is this argument to say that the commission is treading on judicial, the power of individual judges?

MR. MORRISON: It is certainly the fact that the commission treads on the power of individual judges.

QUESTION: But individual judges have always been deciding what the sentence should be within the statutory range.

MR. MORRISON: In the context of a case or controversy, your Honor.

QUESTION: Yes, and in that process, they have certainly been making their own value judgments about the seriousness of the crime.

MR. MORRISON: But they have done it for the one individual before the Court.

QUESTION: That's true.

MR. MORRISON: They have not laid down precedent. And the fact that they were doing it for only the individual before the Court was the very fault that the Congress found with the present system, and the reason that they wanted to change it.

Congress didn't like the individual --

QUESTION: Well, what's wrong with -- put your finger on what's wrong with the commission doing it.

MR. MORRISON: The commission is improperly doing it here because we have a commission which includes three Article 3 judges in the judicial branches.

QUESTION: I know, but they aren't -- the judges aren't doing -- the commission, including the judges on the commission, aren't doing things that judges don't do, or that are improper for judges to do.

Your argument sounds like it's really the fact that the commission is doing it and interfering with judge's judgement in individual cases.

MR. MORRISON: No, your Honor.

I want to be precise in what I'm saying. It is of course true that judges have always engaged in sentencing, but sentencing is not a unified act. It's composed of several different elements.

The imposition of a particular sentence in a particular case is what judges have been doing. What the judges and the other members of the commission are doing here is, they are writing the rules of sentencing not to apply to themselves, but to apply to all judges.

QUESTION: What's wrong with that?

MR. MORRISON: Because they have historically never done that before, and because they are making --

QUESTION: So practice really does make a difference?

MR. MORRISON: No, and because they are making policy decisions of a kind --

QUESTION: You could say the same thing in the Hampton case. There had never been an independent agency before, so the Court should have thrown out the whole idea of independent agencies. There's going to be a first time for lots of things.

MR. MORRISON: Yes, your Honor. But I simply wanted to respond to Justice White's statement that this is what sentencing judges have always done. It's not what sentencing judges have always done, and you are right, there has to be a first time. And my argument is that sentencing judges should not be doing this, because --

QUESTION: Even though they've always been doing it?

MR. MORRISON: They have not --

QUESTION: Well, haven't they always been deciding what the sentence should be within the statutory range?

MR. MORRISON: In an individual case. They have not always been deciding the general rule.

QUESTION: Well, I know, but it's the kind of judgments that judges have always been making. Judges always make these judgments.

Now, you say the commission shouldn't be making it to apply to every case, but the fact of them making the judgments is not non-judicial business.

MR. MORRISON: Well, there may be less difference between us than I think there may appear. Your Honor, of course it is only the translation of the making of these judgments on an across the board basis that creates the problem.

But I do think that there is a difference in kind between laying down and establishing a sentence for a particular individual in a case, and laying down broad rules for --

QUESTION: Well, everybody would agree to that.

MR. MORRISON: That --

QUESTION: But what's wrong? What's un-Constitutional about that?

MR. MORRISON: It is the laying down of the broad rules that causes judges to be embroiled in political controversy.

QUESTION: Mr. Morrison, judges generally have for many years -- even before the Sherman Act -- decided in an individual case whether a particular combination or conspiracy was in unlawful restraint of trade, haven't they?

MR. MORRISON: Yes, your Honor.

QUESTION: And you wouldn't maintain that they can take it upon themselves to write a new Sherman Act, therefore, would you?

MR. MORRISON: I would not.

QUESTION: It's a different job, isn't it?

MR. MORRISON: That's correct.

QUESTION: Mr. Morrison, have you taken into consideration the large city courts where they have committees of judges that meet with the sentencing judge?

MR. MORRISON: You're talking about the non-Federal system, your Honor?

QUESTION: Where one judge calls in two other judges to tell him -- sit down and decide what we're going to do.

MR. MORRISON: Yes, I'm aware of that.

QUESTION: And that's recognized as being valid and good.

MR. MORRISON: Well, it has never been challenged, your Honor, but it is distinguishable on several grounds.

QUESTION: It certainly is legal and valid, and has been in existence for 20 years or more.

MR. MORRISON: It certainly has been in existence. It has never been challenged, and it probably is not challengeable, but there is a major difference, and that is, the three judges sit down, and they have a meeting, and they decide what's appropriate for sentence.

But only the sentencing judge actually decides. A judge gets advice from his or her colleagues and decides what's appropriate. It is not binding.

That system was known to the Congress, and it was one of the things that Congress thought might happen --

QUESTION: What happens if you and I sit down to decide, and I don't agree with you, and the next time we sit down, do you think you're going to agree with me?

MR. MORRISON: I might, or I might not, your Honor.

QUESTION: You wanna bet?

[Laughter]

MR. MORRISON: But it's not binding. It's not binding, and that's the difference.

It's the difference between advice which the Congress rejected as being sufficient, and mandatory binding guidelines subject to very limited exceptions, and that is the reason the Congress felt that it was not sufficient.

QUESTION: Well, I suppose in another sense that every time a Federal Judge hands down some ruling on a point of law, they're binding others not before the Court, aren't they?

MR. MORRISON: Well, your Honor, it is --

QUESTION: And in a sense they're establishing precedent?

MR. MORRISON: Yes, your Honor, but the rules for deviating from precedent, particularly by one judge from another judge in another circuit, or even in the same district, are far less stringent and do not give rise to the same kind of rights that are given rise to when a judge deviates from the sentencing guideline in this case.

QUESTION: Yes, but in a very real sense, judges generally are in the business, at least at the Federal level, of making a good deal of law, in a sense.

MR. MORRISON: Well, they make law, but it's not binding. I would give the example in this very case, Your Honor -- the sentencing guidelines have been before, I think it's approximately 250 Federal judges, who have voted on their Constitutionality. I do not have the latest count, I think it is slightly more than 50 percent who have decided they are un-Constitutional, and less than 50 percent Constitutional, for a variety of different reasons.

QUESTION: I know, but does any of them include the argument you're just making?

MR. MORRISON: Many of them include my argument. Some of them include delegation arguments, some of them include due process arguments, some of them include arguments I've chosen not to make.

There are a whole variety, and I would say the same is true on the other side. There have been cases upheld on grounds that have not been urged by the parties.

The point I make, Justice O'Connor, is to indicate that at least in this particular kind of controversy, no one has felt bound by what their fellow judges have done. Even in the same district courts, there have been deviations in the same district court, and there have been different defendants being sentenced by different people until this case can be decided.

Now, the policy choices that this commission had to make were inevitable, given the kind of functions that it would perform, and that the Ninth Circuit was correct in describing these choices as political. And Indeed, that is what the Congress expected, because Congress proscribed the presence of more than four members of the commission from being of the same political party.

That kind of restriction, which is extremely common in executive branch agencies, where we expect our executive branch officials to be making policy, is unique in the judiciary, and it's unique in the judiciary because we do not expect those bodies in the judicial branch to be making policy, making these kind of political choices.

QUESTION: Well, that speaks in favor of the Solicitor-General's argument that in fact this is executive power being exercised.

MR. MORRISON: I agree, your Honor, and that if the power is properly delegable, it must be executive power.

Now, the Solicitor-General has a matter which I'm sure he will tend to, of how he's going to move the commission out of the judicial branch, where Congress so carefully placed it, into the executive branch, but in any event -- and I'd like to turn to this now, if I may -- we don't think it makes any difference. That if Congress had placed this body in the executive branch of Government, labeled it "executive branch", but had the same Article 3 judges on it, we don't think that would have made a single bit of difference, and it would have been just as unconstitutional there as it is here.

And the reason we say that is because we go back to the purposes behind separation of powers for the judicial branch of Government. That the Founding Fathers separated the judges because they wanted them to be independent, and they wanted them to be impartial. And they were specially concerned about that because they have lifetime appointments.

Now, it's true that they were also conscious of the possibility of tyranny developing when judges were involved in the making of the law or the executing of the law -- but the principal concern was that for the Federal courts to be effective, to be seen as neutral arbiters of our law and our facts, that members of the Federal judiciary have to stay out of the political fray.

QUESTION: (Inaudible)

MR. MORRISON: Making policy.

QUESTION: In all cases?

MR. MORRISON: Openly.

QUESTION: The judges to follow?

MR. MORRISON: That's right, except in the context of a case of controversy where there inevitably will be some policy to be made. It's when --

QUESTION: Well, when the Court of Appeals decides a case, and in effect makes some new law, or makes new policy, it certainly binds every judge in the circuit.

MR. MORRISON: It does, your Honor.

QUESTION: And at the trial court --

MR. MORRISON: And it is done in the context of a case or controversy. Nobody suggests --

QUESTION: And I won't say what happens if we decide it.

[Laughter]

QUESTION: Well, how about the judicial councils?

MR. MORRISON: Well, two things about the Judicial councils. One is the areas in which they have power to act are by and large procedural, or they relate to matters such as discipline, which this Court's decision in Chandler and others recognized are ancillary to the principle function of judges deciding cases or controversies.

The judicial conference could be said to be making policy, but it principally affects the workings of the Court. These sentencing guidelines are intended to affect primary conduct. The purpose of the sentencing guidelines, as Congress said, is not to rehabilitate defendants, but to deter them, to punish them. The message is to go out loud and clear. Members of the public, if you commit crimes, look at the sentencing guidelines and you will go to jail. No more hoping for a judge to let you off.

That's the judgement Congress made, and that is a very different kind of judgement than that kind made by judicial bodies, which are largely advisory or operating in the context of a case or controversy.

QUESTION: Well, that judgement Congress did make. Congress didn't leave that judgement to the commission.

MR. MORRISON: That is correct.

As to the ultimate effect, it did.

QUESTION: Right.

MR. MORRISON: It did.

QUESTION: Mr. Morrison, what if the judges in a particular circuit got together and decided that in order to improve the operation of the criminal system in their circuit, they would develop for themselves some sentencing guidelines, within the ranges established by Congress, and they'd try to get [ILLEGIBLE WORD]l their colleagues to follow them.

Is that improper? Invalid?

MR. MORRISON: Well, let me say, that took place before. There were sentencing groups, councils, I don't know the precise appellation -- they may have varied from court to court -- but they were not mandatory, and that no right of appeal by any defendant or by the Government pertained in the event a judge diverted from that.

And it seems to me that the mandatory nature makes this into a law-making function that is going on here. But as I said, to me it matters not that there is an attempt here to say that judges are after all not sitting as courts of law, they're acting in their individual capacities when they are deciding these rules--that the judges are commissioners and the fact that they are judges is simply -- can be disregarded.

QUESTION: Mr. Morrison, can I interrupt with one question? If the program had been one that made the sentencing guidelines a recommendation to Congress, in effect, and Congress had then adopted them --

MR. MORRISON: Yes?

QUESTION: Would there be any Constitutional objection?

MR. MORRISON: If my client had been sentenced under the guidelines, there would have been no Constitutional objection to the sentence imposed on him, because once Congress goes to the Constitutionally mandated form for enacting legislation, I do not believe that my client could go behind it.

I would still say that there has been a transgression of the principles of separation of powers by the Article III judges participating in this system, although it would be of a somewhat different nature.

But nobody would have any standing, I don't think to --

QUESTION: What you're saying is it would still be un-Constitutional even though no one could challenge it?

MR. MORRISON: I assume no one could challenge it, but I would believe it would be un-Constitutional. It would be inconsistent with what the Founding Fathers believed should be the properly limited function of Article III judges.

QUESTION: Doesn't the undermine --

QUESTION: -- before a committee of Congress about a substantive law?

MR. MORRISON: No, your Honor, I did not say that, and I'm glad you asked me that, because I want to clarify my views on that.

If a judge, not acting pursuant to a statutory mandate, as we have here, and not being directed to produce a consensus determination, not only with Article III judges, but with four people who are not Article III judges, wants to proceed on his own individual basis, and to testify before Congress about a matter relating to judicial administration -- it seems to me that under the balancing test that this Court has established in cases such as Nixon v. GSA and Morrison v. Olson, that that would not be a transgression upon the powers of the judiciary or upon any other powers.

QUESTION: Well, what if a judge wants to testify about some pending bill that has absolutely nothing to do with the judiciary? It may be very bad judgement, but surely he isn't violating the Constitution.

MR. MORRISON: Well, your Honor, I would not say "surely". I think that's a closer question. I do not think that judges should -- if they tend --

QUESTION: And what provision in the Constitution is it that prevents a judge from going over and testifying about a bill for appropriation for a wildlife center?

MR. MORRISON: It seems to me, your Honor, that Article III of the Constitution, as most recently interpreted by this Court in Morrison -- particularly the part in which the Court said that even the attempt to close down the office of the independent counsel might be administrative acts of the kind inappropriate for a judge.

QUESTION: But we were talking about a court there.

MR. MORRISON: your Honor, I submit that if Congress had said that the function shall be performed by an independent appointing commission, or that if in this case the Court said the Congress described this body as a sentencing court, the outcome would have been the same.

We have, in our system -- courts do not decide cases, controversies. Judges decide cases or controversies, and judges are lifetime appointees --

QUESTION: But that's just pure metaphysics.

MR. MORRISON: No, I think it's quite a question of reality, your Honor, that a judge cannot remove his --

QUESTION: That's like saying guns don't kill people, people kill people.

[Laughter]

QUESTION: Mr. Morrison, while you're thinking about that --

[Laughter]

MR. MORRISON: No, I have an answer, I'm just waiting for the applause to die down.

QUESTION: Yes.

What about a judge testifying about sentencing? Testifying in opposition to capital punishment, for example?

MR. MORRISON: I would say a judge should not testify in opposition.

QUESTION: You think he would be acting in violation --

MR. MORRISON: It is a political act. We are--what we are having in this situation is that in order to maintain our judiciary in the way that I believe the Founding Fathers envisioned, judges are supposed to stay out of political controversies.

QUESTION: May they vote?

MR. MORRISON: Yes, your Honor.

[Laughter]

QUESTION: And what if the judge if asked by a --

MR. MORRISON: But it would be improper for them to campaign on behalf of a person for a political office.

QUESTION: I didn't ask that.

MR. MORRISON: And the difference is because it is visible on the one hand and not visible on the other.

QUESTION: But what if a Congressional committee dealing with a sentencing problem wanted to call in judges and ask them for the reasons they'd imposed a series of sentences in cases, just to better understand the sentencing process? You tell me that the judges could not respond to that request.

MR. MORRISON: No, I do not believe that. I did not intend to say that, because if you're talking --

QUESTION: Well, what's the difference, though?

MR. MORRISON: I think the judges are providing expert explanation of what they did. Perhaps some of it will turn into advice. But one of the things we have here is not simply an individual judge acting on his or her own. We don't simply have a collective group of judges coming in and making a recommendation.

We have a collective group of judges joining with four non-judges, attempting to reach a political consensus, and that consensus then becomes the law of sentencing. And inherent in reaching that sentence is not merely expert advice, but very value-laden judgments.

QUESTION: I think you said your position would actually carry to the extent that even if it did not become the law, it was subject to further enactment by Congress, you would still object to this whole process.

MR. MORRISON: In this commission process.

QUESTION: Yes.

MR. MORRISON: I believe that judges shouldn't do it. As I said, the sentence imposed --

QUESTION: I know, you said you think it's un-Constitutional for them to do it.

MR. MORRISON: Yes, I would have to say that.

QUESTION: I wish you hadn't said that. We don't really have to get into that.

MR. MORRISON: We certainly do not, your Honor, but --

QUESTION: It's quite a bit different being a member of an agency that promulgates law, which is what you say is the problem here --

MR. MORRISON: Correct.

QUESTION: From testifying before Congress. We really have to reach that problem today?

MR. MORRISON: We do not have to reach that problem, your Honor, but I was asked the question and I do have to answer, I believe.

[Laughter]

MR. MORRISON: The effort to treat the judges here as acting in their individual capacity falters both on the facts of this statute -- that is, that Congress insisted that three Article III judges be on board. They insisted that they sit down and meet with four other non-Article III judges, and that they engage in a process that could fairly be called horsetrading, to come up with a ranking of offenses and appropriate levels of offenses involving some of the most political judgments that we have to make.

And it seems to me that it doesn't matter whether this function was assigned to a court -- if it had been assigned to this Court, without the non-judicial members, surely the outcome of the case would not have been any different. If your Honors had descended from the bench, taken off your robes, gone into a conference room instead of a courtroom, and decided the case in your individual capacities, decided in your individual capacities to issue these sentencing guidelines.

Surely the outcome can't be depended upon whether you're wearing robes, whether you're called "commissioner" or "your Honor." The Constitution deals with the reality that Federal judges who are appointed for life must maintain their neutrality and their impartiality and because this sentencing commission system fundamentally alters that balance, it is un-Constitutional.

Thank you, your Honors. I'll reserve the rest of my time.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Morrison.

We'll now hear from you, General Fried.

ORAL ARGUMENT OF CHARLES FRIED ON BEHALF OF RESPONDENT/PETITIONER, UNITED STATES

MR. FRIED: Thank you, Mr. Chief Justice, and may it please the Court, for more than 30 years, Congress has been troubled and has worked at the problem of grave, invidious, and inexplicable disparities in the Federal sentencing process.

In 1958, it tried some gentle measures. It put in the judicial councils and institutes to which I believe Justice O'Connor made reference. That did no good at all.

In 1976, they did something a little bit more drastic: we had the Parole Commission Act, which sought to give the parole commission power to even out the sometimes quite dreadful disparities after the fact, and the Court will be familiar with that from the Adinizio case. That, too, failed, and it failed because the judges and the parole commission were working at cross purposes, and the sentencing judges would anticipate the work of the parole commission in pronouncing sentence.

So, strong measures were required to obtain equality and honesty in sentencing. Now, I think that this statute is misunderstood when it is viewed as being unduly rigid. It provides for 25 percent range in which the sentencing judge may operate. That should be enough -- and allows for departures in a rather wide range of circumstances, provided that the judge gives reasons and explains what he's doing.

Now, Petitioner raises three objections. He objects that Congress did not do the whole job here, but rather delegated it to an expert independent agency, and then Petitioner complains as to how that agency is constituted, and most particularly about the inclusion of three Federal judges among the seven members.

Turning to the delegation point -- because it's a good way to indicate what the commission actually did do -- one would have thought, given the very great particularity in the statute, that it would be too late in the day to raise a delegation objection. In fact, the statute sets not only the goals for the commission, but provides the methodology and makes many of the particular judgments, and as was remarked from the bench, of course, all of this takes place within the maxima which are set out by the particular criminal statues, and which are the basis for the kind of grading of severity to which Mr. Morrison referred.

Turning to the methodology because it's most important; the statue required the commission to begin with actual experience. And, indeed, the commission surveyed 40,000 cases, 10,000 of them in very great detail, to see what the sentences actually served under actual circumstances involving the circumstances of the case, the circumstances of the offender -- what they were.

And not only did the commission start with actual experience, to a large extent that's where it ended. To a large extent, these guidelines reflect today's practice. Where the commission departed in these value judgments about which you've heard, they have done so under the explicit mandate of the Act, that for instance, violent offenders, repeat offenders, career criminals, drug traffickers, be sentenced at or near the maximum.

That is not something the commission dreamed up -- they were enjoined to do that by the statute. Similarly, as to white collar criminals --

QUESTION: But the problem is, they've been enjoined to do it for every case.

MR. FRIED: What I was suggesting, Justice White, is that the commission was enjoined to do it by the statute, and therefore they were not simply following their own policy judgement. That they were being guided by what Congress had required, and the guidance from Congress here, I submit, was miles greater than we usually encounter in a delegation.

QUESTION: You're making a non-delegation argument, is that it right not?

MR. FRIED: I am, your Honor.

And the suggestion that this is something that Congress might have handed to an advisory panel, then to enact its work, misses the point that these guidelines, in order to be sensible and effective, must be evolutionary. They must require monitoring of what happens and constant revision, and that of course is precisely the kind of work which is given to an independent agency.

QUESTION: General Fried, do you know of any other agency -- let's say this is in the executive branch -- do you know of any other agency in the executive branch that has no function whatever except to promulgate law?

MR. FRIED: No, I do not, but I do know of a number of agencies which among their other functions do promulgate --

QUESTION: Indeed, just as rulemaking is almost a necessary incident of being an executive.

You must acknowledge -- this is a distinctive entity. Has there ever teen an agency of the Government that has no function except to promulgate law, other than the Congress?

MR. FRIED: Well, I ran through that in my own mind, and I was not able to discover one.

QUESTION: I don't think so.

MR. FRIED: But I do think there are agencies which establish laws for others as well as for themselves, and laws which are enforced by others other than themselves.

QUESTION: In the course of conducting some administrative function or other -- some other executive function.

MR. FRIED: Well, I think the SEC, when it sets down rules, is making rules for others, and for the enforcement by others, as much as for themselves.

QUESTION: That's true, but I assume that if Congress could do this, Congress could decide that we need a massive revision of securities laws, and could simply compose a commission, so long as the directives are general enough to overcome the bare objections we have against overdelegation -- assuming that there's enough standard there, it could just create a commission and say that whatever this commission comes out with shall be our new securities laws.

Can it do that?

MR. FRIED: Well, in this case, of course, the regulations, the rules, have to lie before Congress for six months before becoming effective. I cannot propose any general objection to what you suggest.

QUESTION: Well, it certainly is a nice -- it's a handy way to get around legislative impasse. You just create an agency to make law, right?

MR. FRIED: Well, I don't think that we have here a way of getting around a legislative impasse which might be what was a problem in the Gramm-Rudman situation --because here Congress had come down to a lot of very specific policy judgments, but there has the need to bring them that last six feet down to earth. But they'd done an awful lot of the work themselves.

QUESTION: But if this handy device is doable, why has it never been done before? I mean, it certainly is handy.

MR. FRIED: Well, I can't answer why --

QUESTION: To just simply say, why go through all the trouble of hammering cut a new securities law? Let's just create an agency and say, hey, promulgate a securities law.

MR. FRIED: Well, I would answer that question ultimately by saying that I do not know what provision of the Constitution is violated when an independent agency does make general but really quite guiding legislative judgments ultimately specific. I don't think it violates any provision of the law.

QUESTION: Well, it could be that a certain amount of lawmaking can be given to executive agencies because it inevitably belongs to them, just as a certain amount of lawmaking is given to courts. It's part of their executive function, and you can augment it to a certain degree. And perhaps that's permissible, but it's not permissible to create an agency that has no function except to promulgate a law.

MR. FRIED: With respect, your honor, I do not know that provision of the Constitution is violated by that.

QUESTION: If all it does is promulgate a law, what kind of action would you call that?

MR. FRIED: I would call that executive, your Honor.

QUESTION: You would?

MR. FRIED: If they are executing a law which directs them to make more specific the mandates in the statute, which is how we analyze this case.

Now, beyond the delegation, beyond the delegation objection, which obviously is more formidable than I had imagined it to be --

[Laughter]

MR. FRIED: The complaint is made that the phrase, that this is an independent commission in the judicial branch is a cause for concern. Should we stumble over the phrase "in the judicial branch"? A number of things are quite clear: that the commission is not a court, and that is not simply a technical point. It is not a court because it does not issue judgments in cases, it is not subject to appellate jurisdiction, its judgments cannot be appealed from, it is not issuing final judgments. And it is not subordinate to any court as are, for instance probation officers or bankruptcy judges.

It is in the judicial branch in a perfectly harmless, Constitutionally harmless sense, and that is, first of all, that it is -- its judicial branch connections, which explain the logistics of managing this commission -- who makes out the checks, how is the budget submitted, that particular housekeeping rules, such as the Freedom of Information Act, conflict of interest laws, and [ILLEGIBLE WORD]on, will apply?

Similarly, there is a strong administrative connection between the commission and the administrative office of the courts, and the probation offices, which supply it with a great deal of its information. And that seems to me a set at consequences which Congress might have provided in detail, but in fact, it did so compendiously by stating that this is an independent commission in the judicial branch.

Furthermore, of courses, and much more substantively, this is a way of underlining Congress' very great concern that this be an independent commission --and that, of course, is also thereby accomplished. But beyond that, I see no reason, I see no need, to engage in a rewriting or severance, or anything else, of what Congress did, because I am unable to discover any harmful, any infectious aspect to that designation.

What the designation does do is perfectly appropriate, and if there is some work that it does do that I have not been able to discover, that is inappropriate, by all means let us sever that, but I don't know what it is.

QUESTION: It's been suggested that that one thing was that Congress didn't adopt it afterwards.

MR. FRIEND: Well, Congress was very concerned to insist on the independence of the agency, and very concerned --

QUESTION: They have adopted the Act?

MR. FRIED: Well, it could have done it one time, Justice Marshall, but the need here is --

QUESTION: It could do it right now, could it?

MR. FRIED: Indeed it could.

QUESTION: Well, I mean --

MR. FRIED: But the important thing is that this be allowed to evolve, that there be monitoring of the experience, collection of the data -- that's a monumental task, and continuous revision -- and that is something --

QUESTION: But you wouldn't have had this headache and this lawsuit.

MR. FRIED: You wouldn't have had this headache, but you also would not have had the promise of continuous monitoring and revision, which is what is necessary to make something which would really work.

So I think that if it could have been a one-shot affair, that would have been a different story, but I don't think it sensibly could have been a one-shot, one-time affair. I'd like to turn --

QUESTION: General Fried, if there is a concern -- and I submit there is -- about preserving the independence and the impartiality of the judiciary, it really doesn't make any difference which branch this is under, does it? That concern is the same.

MR. FRIED: I agree, it does not make any difference at all, Justice Kennedy, and I'd like to turn to the objection to the service of three judges on the committee.

QUESTION: when you do that, will you please tell me whether or not in your view the value of impartiality and independence is a value that's protected by the doctrine of separation of powers?

MR. FRIED: Yes, that's precisely what it's my intention to do, because my view is that there is no doctrine and no provision of the Constitution which supports the argument which Petitioner has made.

The framers considered an incompatibility clause, for judges, and rejected -- they omitted to enact one, although they did enact one for Members of Congress. Nor was this an oversight, There are --

QUESTION: Would you concede that the frequent and continuous service by judges on rulemaking and lawmaking commissions might impair the impartiality and the integrity of the judiciary in the minds of the public?

MR. FRIED: As a matter of policy and judgement, that is a very reasonable concern. But we are talking about Constitutional --

QUESTION: And you say the Constitution has no concern and no provisions to protect against that encroachment?

MR. FRIED: I think that in extremes policing the margins, perhaps it does. But I am struck by the fact that Chief Justice Jay served for six months as Secretary of State as did Chief Justice Marshall.

QUESTION: How many cases were pending at that time, Chief Justice?

[Laughter]

MR. FRIED: I don't know, but Chief Justice Marshall, I believe, signed the commission which was the subject of Mawbry v. Madison.

QUESTION: What strikes me about this argument, General Fried -- it seems to me what is remarkable if there is no impediment -- as you say, there is not -- what is remarkable is that not that this is happening sometimes, but that it has happened so rarely. It there has been no felt impediment to members of the judiciary serving in executive positions, I'm amazed that you can come up with no more than the number of examples that you've brought before us.

MR. FRIED: Well, I am quite --

QUESTION: There are very capable men and women in the judiciary over the years, and that so few of them should have thought that they had the time and the ability to lend to the public service in the executive branch strikes me as extraordinary.

MR. FRIED: The matter was discussed, and the only case which I know of which discussed it at some length is United States v. Ferreira, and I think it's quite striking what the Court said in that case.

Petitioner says that Ferreira claims that the Court refused to allow -- I'm quoting here from their brief -- Article III judges to pass or claims such as we're involved in.

What the Court actually said in Ferreira was that the authority conferred on respective judges was nothing more than as a commissioner to adjust certain claims. Nor can we see any ground for objection for the power in that case. That's what this Court said, and when this Court in Ferreira considered the matter, they

[ILLEGIBLE SLIP OP. PAGE 50]

QUESTION: So that Congress could provide that every day, every judge in the United States spends his morning on a commission and the afternoon on an Article III bench?

MR. FRIED: I doubt it.

QUESTION: Why?

MR. FRIED: I doubt it.

QUESTION: Why, if there is no Constitutional prohibition?

MR. FRIED: Because at some point, you reach the point where what you've done is impaired the ability of the judiciary to function.

QUESTION: Just from the standpoint of their workload, or from the standpoint of their reputation for impartiality and independence?

MR. FRIED: I think the two begin to merge, at the point you mentioned.

QUESTION: Well, then, the limiting principle is that there is some limitation on whether or not the independence and the impartiality of the judges can be impaired by a delegation.

MR. FRIED: I think there is some limit.

QUESTION: And it's in the Constitution?

MR. FRIED: Well, I think it is gathered from the principles of the Constitution, but the practice --

QUESTION: Well, is it a Constitutional doctrine?

MR. FRIED: Yes, yes, it is. But the practice of distinguished Chief Justices of this Court, and the words of this Court indicate that those limits are nowhere near as tightly drawn as Petitioners would suggest.

Indeed, Petitioner draws the limits very tightly, very tightly, and I think that the practice and doctrines of this Court clearly indicate that that tight a drawing has no basis.

I simply don't want, and it would imprudent, to suggest there are no limits. If there are limits, of course they are Constitutional limits. So, to that extent, I would certainly agree.

QUESTION: Of course, no judge in this case was required to serve at all.

MR. FRIED: No judge was required to serve, and one can see how --

QUESTION: If all of them, if every judge who was asked to serve had refused, the commission could never have been constituted.

MR. FRIED: That is correct. That is correct.

And if the requirement of three judges were thought to be an impediment, that indeed would be easily cured. Congress could simply indicate in the legislative history that it would be loathe to confirm a commission which did not include three judges, and you would be at the same place.

QUESTION: Wasn't at least one of the Judges a senior judge? Wasn't George McKenna, a senior judge? MR. FRIED: Yes, one of the judges is a senior judge, and there was a question about whether that would be all right, and the matter was adjusted to make sure that it would be all right. That's very useful.

QUESTION: I take it from what you say, General Fried, that if the statute provided that the President could appoint a designated judge, and the judge would be required to serve, that you would agree that would be un-Constitutional.

MR. FRIED: I think that would create a grave problem of the sort Justice Kennedy raises, and a different case.

I would not want to say that for instance, the Sinking Fund Commission, on which Chief Justice Jay served ex officio as Chief Justice, along with the Secretary of State and the Secretary of Treasury, was un-Constitutional, though it was a matter considered by those who were such closer to the framing than we are --

QUESTION: General Fried, I guess you're right that it certainly will make us feel better about it if you tell us we cant be appointed to some things, whether we like it or not, but I'm not sure I see the basis for a Constitutional distinction. If we approve this, why? Why can't -- If it's, somehow a violation of separation of powers, I don't know why it makes any difference whether the initiative comes from the Congress or from us? Whether I volunteer for this violative service, or am enlisted into it, I don't know what difference that should make.

MR. FRIED: Justice Scalla, that is of course not this case, but let's think why that would be bad, because my instinct is as yours; it would be.

I think what would be bad would come out if they designated the second most Junior Associate Justice and you simply refused to serve. What would happen then? Could they issue a writ of mandamus?

Would your vote be counted as present, although you were never there? All of those circumstances suggest that in enforcing such a mandate, they would run afoul of one or another --

QUESTION: Sort of a First Amendment entanglement problem?

[Laughter]

MR. FRIED: Yes, I think that -- I don't think it's cruel and unusual problem this time. I think that is correct.

[Laughter]

QUESTION: Well, it might be a separation of powers argument, if a judge said, well you can't do this to me, because I was appointed a judge, and you're going to keep me from being a Judge.

MR. FRIED: I gave my judgment. In my judgment, this prevents me from being a Judge.

I suppose that if the Chief Justice declined to serves, as he is by statute designated to do, on the Board of the National Gallery, or the Smithsonian Institution, I don't think that he could be compelled to do so, and that I think is the answer to Justice Scalla's question.

Now, --

QUESTION: It's a small point, perhaps, General Fried, but on the salary, could Congress provide that service or one of these commissions entitles the Judge to a $25,000 increase for service on the commission?

QUESTION: Now you're hitting it.

[Laughter]

MR. FRIED: Well, I must admit to you, the question is a fresh one to me. I right offhand can see no objection to it, and in fact --

QUESTION: I wouldn't worry a lot about that problem.

[Laughter]

MR. FRIED: Chairman Wilkens, at the time of his designation, was a District Judge, and therefore suffered a n increase in his salary.

QUESTION: Well, isn't the objection in the delightful hypothetical, I propose, that the President could prefer some Judges over others? Is this an interference with the independence of the judiciary?

MR. FRIED: Well, that is a preference which he can show today, not to members of this Court, and certainly not to the Chief Justice, but even today the possibility of promotion, if it is a promotion --

QUESTION: That's provided for in the Constitution?

MR. FRIED: Well, unless we beg the question, so is this. The question of promotion from a District bench to a Court of Appeals bench.

I thank the Court for its attention.

CHIEF JUSTICE REHNQUIST: Thank you, General Fried.

Mr. Bator, we'll hear now from you.

ORAL ARGUMENT OF PAUL M. BATOR ON BEHALF OF U.S. SENTENCING COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE UNITED STATES

MR. BATOR: Mr. Chief Justice, and say it please the Court, the problem that Congress faced when it enacted this statute is well known to this Court. I'll try to adjust my machinery here -- there's too much machinery.

The problem is familiar to this Court from cases like Furman and Georgia and other cases which showed ugly and indefensible discriminations and disparities and irrational distinctions in the punishments that people get in the criminal justice system.

And in those cases, litigants came to this Court and said "This Court should do something about that." Now, this case is very different because in this case, the executive departments and the Congress for 10 years put on a massive bipartisan effort, and it said, "we're going to do something about it. We're going to reduce these ugly and indefensible discriminations and disparities in criminal sentences."

And now this Court is being asked to undo this effort and really send us back to what were very ugly days of discriminatory and arbitrary sentencing.

Now, I think really the key to Mr. Morrison's submission here today is simply that this -- Congress has never quite created an animal quite like this. The sentencing commission is not quite like the parole board -- its guidelines are not quite like the rules of procedure, and therefore this is un-Constitutional. But there is no rule of Constitutional law that Congress may not do something that is new.

In this courtroom, this Petitioner must really show that this act violated the separation of powers by really prejudicing one of the branches from doing their Constitutionally-appropriate law. We really must find actual prejudice under the standards of separation of powers that this Court has promulgated. Mere atmospherics is not enough, and our central submission, your Honors, is that there is no incursion here on any Constitutional role of the executive, and that this commission and this Act does not prejudice the independence and the impartiality and the performance by the courts of doing their Constitutionally-assigned functions.

Now, this Act is an act that, creates an institutional design. What are the parts of the design? Congress says this ought to be an independent commission, and as far as I understand, there was no serious argument that that was un-Constitutional. Congress said this commission should not be controlled by the political branches or by the Congress or even controlled by the courts, because this agency is not under the comination of the courts.

Second Congress said this agency is to be designated as being in the judicial branch -- and there's been talk about what does that mean? Congress had, I think, very simple purposes in mind in making that designation. It had practical purposes. The commission in its daily work works intimately, all the time, with the judicial apparatus, and it just makes logistical and administrative and budgetary sense to put it in the Judicial branch.

Congress had a symbolic functions here in this designation. As the Senate commission said, Congress wanted sentencing to continue to be primarily a judicial function. For 150 years, it was the judges' responsibility to sentence. And that --

QUESTION: As courts, it was the court's responsibility to sentence.

MR. BATOR: But the general, the symbolism of making the judicial branch responsible for bringing order and good repair into the judicial house of sentencing--Congress thought that it was important to make the Judicial branch responsible for that role.

Congress also had in mind your Honor -- it's a precautionary note, and that's the point of independence. Congress wanted to make sure that sentencing kept free from the domination of the executive branch, which initiates prosecutions. It wanted to make sure the commissions is independent.

Now, Mr. Morrison's central submission -- I think Justice Scalla's questions probe at this issue -- is that the problem this statute creates is with respect to the judicial branch, because the judicial has never before been given the task of issuing legislative style rules that so directly affect the liberties of citizens. They have been given this task that looks like the making of law -- and Mr. Morrison says that's incongruous, and therefore un-Constitutional.

But it seems to me, your Honor, that there are clearly important factors which show that this is a separate situation, and a distinct situation, which makes this a congruous assignment by Congress. Congress had, really, four factors, I think, in mind.

First of all, this job was not given, Justice Kennedy, to the courts or to the judges. It was given to an agency that functionally functions exactly like a hundred other independent agencies. It happens to have three Judges. But this is not the same case as if Congress had said, "This Court is to issue sentencing guidelines."

The Court does not need to decide today whether that would be Constitutional, although in candor I should tell the Court that our position is that sentencing is so special that sentencing is so closely tied to the fair administration of justice in the courts, that if Congress finds that this Court should be made responsible for helping to bring some order into the task of sentencing, that would be valid. But that's not this Court's problem today.

The second point about these rules is historical. This delegation is novel in form but not in substance. It is for 150 years the courts have already, in their sentencing decisions, exercised virtually unfettered lawmaking power.

QUESTION: Well, they may have decided they wanted to fetter it. Congress wanted to fetter the power that individual judges had been exercising, because they are the ones who created the problem. They are the ones who gave the disparate sentences all around the country.

MR. BATOR: I think I agree with that completely, your honor. In a sense, we had the worst of both worlds, because Congress had created no general standards, so the courts in their individual decisions were making general, implicit, general standards. The only difference is that they were doing it one by one.

That is, there is a sense in which the courts, the individual judges, were making sentencing guidelines for 150 years, because Congress provided no standards. And the only difference is that they did it each one for himself, each one for herself.

QUESTION: But that's not a guideline at all. I mean, I could depart from it tomorrow. Even the same judge could go over to a different methodology the next case, couldn't He?

MR. BATOR: The judge has unfettered lawmaking discretion.

QUESTION: Well, would you call -- I don't call that lawmaking, to decide a particular case, that this defendant will get 15 years. I don't call that making a law. I call making a law, all defendants that have this characteristic will get 15 years. That's a law.

But saying that this defendant will get 15 years -- that's not a law at all. That's the decision of a case.

MR. BATOR: Your Honor, I believe substantively they were making the law in deciding what ought to be the severity of punishment.

QUESTION: Well, I think we're using law in two different senses. You're not using it in the relevant sense here, it seems to me.

MR. BATOR: They were doing it case by case -- of course I acknowledge that. But the distinction between case by case adjudication and general rulemaking is at its weakest where the Congress provides no general standards, and the courts have to -- even it implicitly -- create the standards as well as to make the particular application point.

QUESTION: Well, suppose that Congress told the courts, that Congress created a commission with judges on it, judges only, to promulgate rules for damages in libel cases.

Now, really, Professor, the whole justification for our making law at all -- and we do all the time -- is because we must do so in order to decide a case. And that's not what the sentencing guidelines are.

MR. BATOR: Your Honor, our position would be that if Congress created an independent agency and said judges ought to be participating in it, and the purpose of the agency is to rationalize and clean up a system of incredible discrepancies in, for instance, the allocation of punitive damages -- we think that ought to be Constitutional.

Now, sentencing seems to me an even easier case though, because of the very special role that judges nave historically played in the creation of law and policy with respect to sentences. But that is within the general ambit of our argument, your Honor, and would a distinguish both of those cases from what we were talking about -- the anti-trust guidelines. There is a jurisprudential difference between sentencing guidelines and anti-trust guidelines.

Sentencing guidelines do not tell the citizens, "This is now illegal." No sentencing guideline makes illegal or actionable anything that had been done before. Of course it has an impact on liberties, but it is not jurisprudentially a substantive rule, and that's an important distinction.

I have one more point, your Honors, and that's a separation of powers point. And it's also a very important practical point.

Overall, globally viewed, the Sentencing Reform Act significantly reduces, rather than expands, the overall power of the judicial branch to make law with respect to sentencing. Before the Act, the judicial branch exercised a plenary discretion to make sentencing law. This Act significantly narrows and makes accountable that power.

The doctrine of separation of powers is supposed to have something to do with liberty, and it would be a huge irony if this Court invalidated a statute whose global effect is not to increase but sharply to curtail the prerogatives of one of the branches of Government.

Your Honor, I have not had time to deal with a question of the specific service at judges, and I will leave that issue to the briefs, and also to the arguments made by the Solicitor-General.

I want to add one footnote, if I have time. In his reply brief, Mr. Morrison makes, I think, an important concession. He says it would be Constitutional to have a commission in the judicial branch with judges dealing with issues of parole and reduction of good time. I think that's a fatal concession for him, both at a superficial and at a deep level; at a superficial level, because I don't understand the distinction, at a Constitutional level, between the commission that deals with parole and the commission that deals with the things this commission did.

At a deeper level, I think, the concession shows that sentencing cannot be cabined into the tidy table of organization that Petitioner prefers. Sentencing has always been a special feature of our jurisprudence. It's always been a field in which responsibility has been shared among the branches.

QUESTION: Limits on sentencing -- the limits or what an individual judge could do in imposing a sentence, has always been the prerogative of the Congress, hasn't it?

MR. BATOR: Has always been the prerogative of

QUESTION: The prerogative of the Congress. The pronouncement of the sentence has always been for the judge, to be sure, but the limits within which the judge is permitted to operate in imposing the sentence has until now been with the Congress, has it not?

MR. BATOR: The Congress, of course, has plenary Constitutional authority to determine what the punishment should be.

QUESTION: I'm just asking whether up until now it is not true that the limits within which each individual judge had to maneuver in imposing a sentence has been up to the Congress. And the effect of this legislation is to place those limits within this commission.

MR. BATOR: No, your Honor, I don't think so.

Before this statute, Congress in the substantive criminal statute legislated the maximum, and the individual judge had plenary discretion on where to sentence within that maximum. Exactly that same constraint operated on the commission.

The maximums created by statute continue to bind the commission, and the commission and the judge then operating with the guidelines together are exercising not more authority but less authority than before the sentencing guidelines, because Congress added an awful lot of other, specific, narrowing to the situation.

QUESTION: The commission has established new, lower, maximums -- has establishing new, lower maximum sentences for certain offenses.

MR. BATOR: I'm not sure I understand your Honor's question. But the commission operated as individual judges.

QUESTION: Some offenses which the statute says can be sentenced to 30 years, some of those the commission has said, given certain circumstances, the maximum can only be 20. Isn't that right?

MR. BATOR: That's true, yes, sir.

That's exactly what the District Judge did before. The District Judge could say, for this offenses, I will never sentence anybody for more than 20 years.

QUESTION: But he couldn't say that another District Judge couldn't sentence to 30 years. He could say that he couldn't, or that he wouldn't.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Bator.

Mr. Morrison, you have three minutes remaining.

REBUTTAL ARGUMENT OF ALAN B. MORRISON

MR. MORRISON: Thank you, your Honor.

Let me turn first to the point that Mr. Bator made regarding the question of whether these kinds of Parole and probation functions could be taken care if in the judicial branch, although they're now in the executive branch.

I thought that our reply brief was clear, but if it's not, I'll make it clear now. We weren't talking about what judges could do, but I don't think it would matter.

I think the important points is that in those particular circumstances, they would be acting as individual adjudicators, much as the parole commission now adjudicates when a person, or determines when a person is entitled to parole.

We said nothing about judges laying down rules to apply to probation any more than judges now do.

Second, I want to be clear that although Bator says that you have to show actual prejudice to find a violation of separation of powers, last year in this Court's decision in Morrison v. Olson, when discussion the question of whether the independent counsel, the judges could close down the office of the independent counsel in the event the work of the independent counsel was done, the Court did not look to find actual prejudice.

It said that "we will construe the statute narrowly, lest it be considered that the special court could engage in administrative-type activity." No showing of actual prejudice to any branch of the Government -- a prophylactic rule of the kind that we're asking for here.

It is, I suggest, the fact that if this Commission is allowed to do this that we will have commissions on punitive damages dealing with remedies, on pain and suffering dealing with remedies, on statues of limitations dealing with remedies, at least in Federal causes. Indeed, we could have the commission re-write the bankruptcy code, for what is the bankruptcy law after all but a series of remedies for pre-existing rights?

And if you do not believe, as I do, that that's sufficiently incongruous for Article III judges to be performing on their own, it certainly seems to me that given our separation of powers to add four non-judges to a commission and to have them make the policy choices offends our basic notions of separation of powers, and for those reasons, the commission cannot stand.

Let me say one final word about the Solicitor-General's notion of need for evolution. If the Congress had taken the advice of many and passed this statute, these guidelines into law, we would have a very different set of circumstances, for the basic policy choices would have been made, albeit with much advice, by the Congress when it enacted it into the law. We would then have intelligible principles against which we could determine whether, in the light of experience, the guidelines were working.

We would have a very different situation, so it would be a one-shot act by Congress, followed by a commission which thereafter properly constituted could effectively carry out the law and not leave in place forever.

Thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Morrison.

The case is submitted.

(Whereupon, at 2:17 o'clock p.m., the case in the above-title matter was submitted.)