U.S. Supreme Court Mistretta v. United States, 488
U.S. 361 (1989) Mistretta v. United
States No. 87-7028 Argued October 5,
1988 Decided January 18, 1989 488
U.S. 361 ast|>* 488
U.S. 361 CERTIORARI BEFORE JUDGMENT TO THE
UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus Because the existing indeterminate sentencing system resulted in
serious disparities among the sentences imposed by federal judges
upon similarly situated offenders and in uncertainty as to an
offender's actual date of release by Executive Branch parole
officials, Congress passed the Sentencing Reform Act of 1984 (Act),
which, inter alia, created the United States Sentencing
Commission as an independent body in the Judicial Branch with power
to promulgate binding sentencing guidelines establishing a range of
determinate sentences for all categories of federal offenses and
defendants according to specific and detailed factors. After the
District Court upheld the constitutionality of the Commission's
resulting Guidelines against claims by petitioner Mistretta, who
was under indictment on three counts centering in a cocaine sale,
that the Commission was constituted in violation of the
separation-of-powers principle, and that Congress had delegated
excessive authority to the Commission to structure the Guidelines,
Mistretta pleaded guilty to a conspiracy-to-distribute count, was
sentenced under the Guidelines to 18 months' imprisonment and other
penalties, and filed a notice of appeal. This Court granted his
petition and that of the United States for certiorari before
judgment in the Court of Appeals in order to consider the.
Guidelines' constitutionality.

															Held: The Sentencing Guidelines are constitutional, since
Congress neither (1) delegated excessive legislative power to the
Commission nor (2) violated the separation-of-powers principle by
placing the Commission in the Judicial Branch, by requiring federal
judges to serve on the Commission and to share their authority with
nonjudges, or by empowering the President to appoint Commission
members and to remove them for cause. The Constitution's structural
protections do not prohibit Congress from delegating to an expert
body within the Judicial Branch the intricate task of formulating
sentencing guidelines consistent with such significant statutory
direction as is present here, nor from calling upon the accumulated
wisdom and experience of the Judicial Branch in creating policy on
a matter uniquely within the ken of judges. Pp. 488 U. S.
371 -412. 682
F. Supp. 1033 , affirmed. Page 488 U. S. 362 BLACKMUN, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, O'CONNOR, and
KENNEDY, JJ., joined, and in all but n. 11 of which BRENNAN, J.,
joined. SCALIA, J., filed a dissenting opinion, post, p. 488 U. S.
413 .

															JUSTICE BLACKMUN delivered the opinion of the Court.

															In this litigation, we granted certiorari before judgment in the
United States Court of Appeals for the Eighth Circuit in order to
consider the constitutionality of the Sentencing Guidelines
promulgated by the United States Sentencing Commission. The
Commission is a body created under the Sentencing Reform Act of
1984 (Act), as amended, 18 U.S.C. § 3551 et seq. (1982 ed., Supp. IV), and 28 U.S.C. §§ 991-998 (1982 ed., Supp.
IV). [ Footnote 1 ] The United
States District Court for the Western District of Missouri ruled
that the Guidelines Page 488 U. S. 363 were constitutional. United States v.
Johnson, 682 F.
Supp. 1033 (1988). [ Footnote
2 ] I A Background For almost a century, the Federal Government employed in
criminal cases a system of indeterminate sentencing. Statutes
specified the penalties for crimes, but nearly always gave the
sentencing judge wide discretion to decide whether the offender
should be incarcerated and for how long, whether restraint, such as
probation, should be imposed instead of imprisonment or fine. This
indeterminate sentencing system was supplemented by the utilization
of parole, by which an offender was returned to society under the
"guidance and control" of a parole officer. See Zerbst v.
Kidwell, 304 U. S. 359 , 304 U. S. 363 (1938).

															Both indeterminate sentencing and parole were based on concepts
of the offender's possible, indeed probable, rehabilitation, a view
that it was realistic to attempt to rehabilitate the inmate, and
thereby to minimize the risk that he would resume criminal activity
upon his return to society. It obviously required the judge and the
parole officer to make their respective sentencing and release
decisions upon their own assessments of the offender's amenability
to rehabilitation. As a result, the court and the officer were in
positions to exercise, and usually did exercise, very broad
discretion. See Kadish, The Advocate and the Expert --
Counsel in the Pen-Correctional Process, 45 Minn.L.Rev. 803,
812-813 (1961). Page 488 U. S. 364 This led almost inevitably to the conclusion on the part of a
reviewing court that the sentencing judge "sees more and senses
more" than the appellate court; thus, the judge enjoyed the
"superiority of his nether position," for that court's
determination as to what sentence was appropriate met with
virtually unconditional deference on appeal. See Rosenberg, Judicial Discretion of the Trial Court, Viewed From
Above, 22 Syracuse L.Rev. 635, 663 (1971). See Dorszynski v.
United States, 418 U. S. 424 , 418 U. S. 431 (1974). The decision whether to parole was also "predictive and
discretionary." Morrissey v. Brewer, 408 U.
S. 471 , 408 U. S. 480 (1972). The correction official possessed almost absolute
discretion over the parole decision. See, e.g., Brest v.
Ciccone, 371 F.2d 981, 982-983 (CA8 1967); Rifai v. United
States Parole Comm'n, 586 F.2d 695 (CA9 1978).

															Historically, federal sentencing -- the function of determining
the scope and extent of punishment -- never has been thought to be
assigned by the Constitution to the exclusive jurisdiction of any
one of the three Branches of Government. Congress, of course, has
the power to fix the sentence for a federal crime, United
States v. Wiltberger , 5 Wheat. 76 (1820), and the
scope of judicial discretion with respect to a sentence is subject
to congressional control. Ex parte United States, 242 U. S. 27 (1916). Congress early abandoned fixed sentence rigidity, however,
and put in place a system of ranges within which the sentencer
could choose the precise punishment. See United States v.
Grayson, 438 U. S. 41 , 438 U. S. 45 -46
(1978). Congress delegated almost unfettered discretion to the
sentencing judge to determine what the sentence should be within
the customarily wide range so selected. This broad discretion was
further enhanced by the power later granted the judge to suspend
the sentence and by the resulting growth of an elaborate probation
system. Also, with the advent of parole, Congress moved toward a
"three-way sharing" of sentencing responsibility by granting
corrections personnel in the Executive Branch the discretion Page 488 U. S. 365 to release a prisoner before the expiration of the sentence
imposed by the judge. Thus, under the indeterminate sentence
system, Congress defined the maximum, the judge imposed a sentence
within the statutory range (which he usually could replace with
probation), and the Executive Branch's parole official eventually
determined the actual duration of imprisonment. See Williams v.
New York, 337 U. S. 241 , 337 U. S. 248 (1949). See also Geraghty v. United States Parole Comm'n, 719 F.2d 1199, 1211 (CA3 1983), cert. denied, 465 U.S.
1103 (1984); United States v. Addonizio, 442 U.
S. 178 , 442 U. S. 190 (1979); United States v. Brown, 381 U.
S. 437 , 381 U. S. 443 (1965) ("[I]f a given policy can be implemented only by a
combination of legislative enactment, judicial application, and
executive implementation, no man or group of men will be able to
impose its unchecked will").

															Serious disparities in sentences, however, were common.
Rehabilitation, as a sound penological theory, came to be
questioned and, in any event, was regarded by some as an
unattainable goal for most cases. See N. Morris, The
Future of Imprisonment 24-43 (1974); F. Allen, The Decline of the
Rehabilitative Ideal (1981). In 1958, Congress authorized the
creation of judicial sentencing institutes and joint councils, see 28 U.S.C. § 334, to formulate standards and criteria
for sentencing. In 1973, the United States Parole Board adopted
guidelines that established a "customary range" of confinement. See United States Parole Comm'n v. Geraghty, 445 U.
S. 388 , 445 U. S. 391 (1980). Congress in 1976 endorsed this initiative through the
Parole Commission and Reorganization Act, 18 U.S.C. §§ 4201-4218,
an attempt to envision for the Parole Commission a role, at least
in part, "to moderate the disparities in the sentencing practices
of individual judges." United States v. Addonizio, 442
U.S. at 442 U. S. 189 .
That Act, however, did not disturb the division of sentencing
responsibility among the three Branches. The judge continued to
exercise discretion and to set the sentence within the statutory
range fixed by Congress, while the prisoner's Page 488 U. S. 366 actual release date generally was set by the Parole
Commission.

															This proved to be no more than a waystation. Fundamental and
widespread dissatisfaction with the uncertainties and the
disparities continued to be expressed. Congress had wrestled with
the problem for more than a decade when, in 1984, it enacted the
sweeping reforms that are at issue here.

															Helpful in our consideration and analysis of the statute is the
Senate Report on the 1984 legislation, S.Rep. No. 98-225 (1983)
(Report). [ Footnote 3 ] The
Report referred to the "outmoded rehabilitation model" for federal
criminal sentencing, and recognized that the efforts of the
criminal justice system to achieve rehabilitation of offenders had
failed. Id. at 38. It observed that the indeterminate
sentencing system had two "unjustifi[ed]" and "shameful"
consequences. Id. at 38, 65. The first was the great
variation among sentences imposed by different judges upon
similarly situated offenders. The second was the uncertainty as to
the time the offender would spend in prison. Each was a serious
impediment to an evenhanded and effective operation of the criminal
justice system. The Report went on to note that parole was an
inadequate device for overcoming these undesirable consequences.
This was due to the division of authority between the sentencing
judge and the parole officer, who often worked at cross-purposes;
to the fact that the Parole Commission's own guidelines did not
take into account factors Congress regarded as important in
sentencing, such as the sophistication of the offender and the role
the offender played in an offense committed with others, id. at 48; and to the fact that the Parole Commission had
only limited power to adjust a sentence imposed by the court. Id. at 47. Page 488 U. S. 367 Before settling on a mandatory guideline system, Congress
considered other competing proposals for sentencing reform. It
rejected strict determinate sentencing, because it concluded that a
guideline system would be successful in reducing sentence
disparities while retaining the flexibility needed to adjust for
unanticipated factors arising in a particular case. Id. at
78-79, 62. The Judiciary Committee rejected a proposal that would
have made the sentencing guidelines only advisory. Id. at
79. B The Act The Act, as adopted, revises the old sentencing process in
several ways:

															1. It rejects imprisonment as a means of promoting
rehabilitation, 28 U.S.C. § 994(k), and it states that punishment
should serve retributive, educational, deterrent, and
incapacitative goals, 18 U.S.C. § 3553(a)(2).

															2. It consolidates the power that had been exercised by the
sentencing judge and the Parole Commission to decide what
punishment an offender should suffer. This is done by creating the
United States Sentencing Commission, directing that Commission to
devise guidelines to be used for sentencing, and prospectively
abolishing the Parole Commission. 28 U.S.C. §§ 991, 994, and
995(a)(1).

															3. It makes all sentences basically determinate. A prisoner is
to be released at the completion of his sentence reduced only by
any credit earned by good behavior while in custody. 18 U.S.C. §§
3624(a) and (b).

															4. It makes the Sentencing Commission's guidelines binding on
the courts, although it preserves for the judge the discretion to
depart from the guideline applicable to a particular case if the
judge finds an aggravating or mitigating factor present that the
Commission did not adequately consider when formulating guidelines.
§§ 3553(a) and (b). The Act also requires the court to state its
reasons for the sentence Page 488 U. S. 368 imposed, and to give "the specific reason" for imposing a
sentence different from that described in the guideline. §
3553(c).

															5. It authorizes limited appellate review of the sentence. It
permits a defendant to appeal a sentence that is above the defined
range, and it permits the Government to appeal a sentence that is
below that range. It also permits either side to appeal an
incorrect application of the guideline. §§ 3742(a) and (b).

															Thus, guidelines were meant to establish a range of determinate
sentences for categories of offenses and defendants according to
various specified factors, "among others." 28 U.S.C. §§ 994(b),
(c), and (d). The maximum of the range ordinarily may not exceed
the minimum by more than the greater of 25% or six months, and each
sentence is to be within the limit provided by existing law. §§
994(a) and (b)(2). C The Sentencing Commission The Commission is established "as an independent commission in
the judicial branch of the United States." § 991(a). It has seven
voting members (one of whom is the Chairman) appointed by the
President "by and with the advice and consent of the Senate."

															"At least three of the members shall be Federal judges selected
after considering a list of six judges recommended to the President
by the Judicial Conference of the United States." Ibid. No more than four members of the Commission shall
be members of the same political party. The Attorney General, or
his designee, is an ex officio nonvoting member. The
Chairman and other members of the Commission are subject to removal
by the President "only for neglect of duty or malfeasance in office
or for other good cause shown." Ibid. Except for initial
staggering of terms, Page 488 U. S. 369 a voting member serves for six years, and may not serve more
than two full terms. §§ 992(a) and (b). [ Footnote 4 ] D The Responsibilities of the Commission In addition to the duty the Commission has to promulgate
determinative sentence guidelines, it is under an obligation
periodically to "review and revise" the guidelines. § 994(o). It is
to

															"consult with authorities on, and individual and institutional
representatives of, various aspects of the Federal criminal justice
system." Ibid. It must report to Congress "any amendments of the
guidelines." § 994(p). It is to make recommendations to Congress
whether the grades or maximum penalties should be modified. §
994(r). It must submit to Congress at least annually an analysis of
the operation of the guidelines. § 994(w). It is to issue "general
policy statements" regarding their application. § 994(a)(2). And it
has the power to "establish general policies . . . as are necessary
to carry out the purposes" of the legislation, § 995(a)(1); to
"monitor the performance of probation officers" with respect to the
guidelines, § 995(a)(9); to "devise and conduct periodic training
programs of instruction in sentencing techniques for judicial and
probation personnel" and others, § 995(a)(18); and to "perform such
other functions as are required to permit Federal courts to meet
their responsibilities" as to sentencing, § 995(a)(22).

															We note, in passing, that the monitoring function is not without
its burden. Every year, with respect to each of more than 40,000
sentences, the federal courts must forward, and the Commission must
review, the presentence report, Page 488 U. S. 370 the guideline worksheets, the tribunal's sentencing statement,
and any written plea agreement. II This Litigation On December 10, 1987, John M. Mistretta (petitioner) and another
were indicted in the United States District Court for the Western
District of Missouri on three counts centering in a cocaine sale. See App. to Pet. for Cert. in No. 87-1904, p. 16a.
Mistretta moved to have the promulgated Guidelines ruled
unconstitutional on the grounds that the Sentencing Commission was
constituted in violation of the established doctrine of separation
of powers, and that Congress delegated excessive authority to the
Commission to structure the Guidelines. As has been noted, the
District Court was not persuaded by these contentions. [ Footnote 5 ]

															The District Court rejected petitioner's delegation argument on
the ground that, despite the language of the statute, the
Sentencing Commission "should be judicially characterized as having
Executive Branch status," 682 F. Supp. at 1035, and that the
Guidelines are similar to substantive rules promulgated by other
agencies. Id. at 1034-1035. The court also rejected
petitioner's claim that the Act is unconstitutional because it
requires Article III federal judges to serve on the Commission. Id. at 1035. The court stated, however, that its opinion
"does not imply that I have no serious doubts about some parts of
the Sentencing Guidelines and the legality of their anticipated
operation." Ibid. Petitioner then pleaded guilty to the first count of his
indictment (conspiracy and agreement to distribute cocaine, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)). The Government
thereupon moved to dismiss the remaining counts. Page 488 U. S. 371 That motion was granted. App. to Pet. for Cert. in No. 87-1904,
p. 33a. Petitioner was sentenced under the Guidelines to 18 months'
imprisonment, to be followed by a 3-year term of supervised
release. Id. at 30a, 35a, 37a. The court also imposed a
$1,000 fine and a $50 special assessment. Id. at 31a,
40a.

															Petitioner filed a notice of appeal to the Eighth Circuit, but
both petitioner and the United States, pursuant to this Court's
Rule 18, petitioned for certiorari before judgment. Because of the
"imperative public importance" of the issue, as prescribed by the
Rule, and because of the disarray among the Federal District
Courts, [ Footnote 6 ] we granted
those petitions. 486 U.S. 1054 (1988). III Delegation of Power Petitioner argues that, in delegating the power to promulgate
sentencing guidelines for every federal criminal offense to an
independent Sentencing Commission, Congress has granted the
Commission excessive legislative discretion in violation of the
constitutionally based nondelegation doctrine. We do not agree.

															The nondelegation doctrine is rooted in the principle of
separation of powers that underlies our tripartite system of
Government. The Constitution provides that "[a]ll legislative
Powers herein granted shall be vested in a Congress of the United
States," U.S.Const., Art. I, § 1, and we long have insisted that
"the integrity and maintenance of Page 488 U. S. 372 the system of government ordained by the Constitution" mandate
that Congress generally cannot delegate its legislative power to
another Branch. Field v. Clark, 143 U.
S. 649 , 143 U. S. 692 (1892). We also have recognized, however, that the separation of
powers principle, and the nondelegation doctrine in particular, do
not prevent Congress from obtaining the assistance of its
coordinate Branches. In a passage now enshrined in our
jurisprudence, Chief Justice Taft, writing for the Court, explained
our approach to such cooperative ventures:

															"In determining what [Congress] may do in seeking assistance
from another branch, the extent and character of that assistance
must be fixed according to common sense and the inherent
necessities of the government coordination." J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394 , 276 U. S. 406 (1928). So long as Congress

															"shall lay down by legislative act an intelligible principle to
which the person or body authorized to [exercise the delegated
authority] is directed to conform, such legislative action is not a
forbidden delegation of legislative power." Id. at 276 U. S.
409 .

															Applying this "intelligible principle" test to congressional
delegations, our jurisprudence has been driven by a practical
understanding that, in our increasingly complex society, replete
with ever-changing and more technical problems, Congress simply
cannot do its job absent an ability to delegate power under broad
general directives. See Opp Cotton Mills, Inc. v.
Administrator, Wage and Hour Div. of Dept. of Labor, 312 U. S. 126 , 312 U. S. 145 (1941) ("In an increasingly complex society, Congress obviously
could not perform its functions if it were obliged to find all the
facts subsidiary to the basic conclusions which support the defined
legislative policy"); see also United States v. Robel, 389 U. S. 258 , 389 U. S. 274 (1967) (opinion concurring in result).

															"The Constitution has never been regarded as denying to the
Congress the necessary resources of flexibility and practicality,
which will enable it to perform its function." Panama Refining Co. v. Ryan, 293 U.
S. 388 , 293 U. S. 421 (1935). Accordingly, this Court has deemed it

															"constitutionally sufficient if Congress clearly Page 488 U. S. 373 delineates the general policy, the public agency which is to
apply it, and the boundaries of this delegated authority." American Power & Light Co. v. SEC, 329 U. S.
90 , 329 U. S. 105 (1946).

															Until 1935, this Court never struck down a challenged statute on
delegation grounds. See Synar v. United
States, 626 F.
Supp. 1374 , 1383 (DC) (three-judge court), aff'd sub nom.
Bowsher v. Synar, 478 U. S. 714 (1986). After invalidating in 1935 two statutes as excessive
delegations, see A. L. A. Schechter Poultry Corp. v. United
States, 295 U. S. 495 , and Panama Refining Co. v. Ryan, supra, we have upheld, again
without deviation, Congress' ability to delegate power under broad
standards. [ Footnote 7 ] See, e.g., Lichter v. United States, 334 U.
S. 742 , 334 U. S.
785 -786 (1948) (upholding delegation of authority to
determine excessive profits); American Power & Light Co. v.
SEC, 329 U.S. at 329 U. S. 105 (upholding delegation of authority to Securities and Exchange
Commission to prevent unfair or inequitable distribution of voting
power among security holders); Yakus v. United States, 321 U. S. 414 , 321 U. S. 426 (1944) (upholding delegation to administrator to fix commodity
prices that would be fair and equitable, and would effectuate the
purposes of the Emergency Price Control Act of 1942); FPC v.
Hope Natural Gas Co., 320 U. S. 591 , 320 U. S. 600 (1944) (upholding delegation to Federal Power Commission to
determine Page 488 U. S. 374 just and reasonable rates); National Broadcasting Co. v.
United States, 319 U. S. 190 , 319 U. S.
225 -226 (1943) (upholding delegation to Federal
Communications Commission to regulate broadcast licensing "as
public interest, convenience, or necessity" require).

															In light of our approval of these broad delegations, we harbor
no doubt that Congress' delegation of authority to the Sentencing
Commission is sufficiently specific and detailed to meet
constitutional requirements. Congress charged the Commission with
three goals: to "assure the meeting of the purposes of sentencing
as set forth" in the Act; to

															"provide certainty and fairness in meeting the purposes of
sentencing, avoiding unwarranted sentencing disparities among
defendants with similar records . . . while maintaining sufficient
flexibility to permit individualized sentences,"

															where appropriate; and to "reflect, to the extent practicable,
advancement in knowledge of human behavior as it relates to the
criminal justice process." 28 U.S.C. § 991(b)(1). Congress further
specified four "purposes" of sentencing that the Commission must
pursue in carrying out its mandate: "to reflect the seriousness of
the offense, to promote respect for the law, and to provide just
punishment for the offense"; "to afford adequate deterrence to
criminal conduct"; "to protect the public from further crimes of
the defendant"; and "to provide the defendant with needed . . .
correctional treatment." 18 U.S.C. § 3553(a)(2).

															In addition, Congress prescribed the specific tool -- the
guidelines system -- for the Commission to use in regulating
sentencing. More particularly, Congress directed the Commission to
develop a system of "sentencing ranges" applicable "for each
category of offense involving each category of defendant." 28
U.S.C. § 994(b). [ Footnote 8 ]
Congress instructed the Page 488 U. S. 375 Commission that these sentencing ranges must be consistent with
pertinent provisions of Title 18 of the United States Code, and
could not include sentences in excess of the statutory maxima.
Congress also required that, for sentences of imprisonment,

															"the maximum of the range established for such a term shall not
exceed the minimum of that range by more than the greater of 25
percent or 6 months, except that, if the minimum term of the range
is 30 years or more, the maximum may be life imprisonment."

															§ 994(b)(2). Moreover, Congress directed the Commission to use
current average sentences "as a starting point" for its structuring
of the sentencing ranges. § 994(m).

															To guide the Commission in its formulation of offense
categories, Congress directed it to consider seven factors: the
grade of the offense; the aggravating and mitigating circumstances
of the crime; the nature and degree of the harm caused by the
crime; the community view of the gravity of the offense; the public
concern generated by the crime; the deterrent effect that a
particular sentence may have on others; and the current incidence
of the offense. §§ 994(c)(1)(7). [ Footnote 9 ] Congress set forth 11 factors for the
Commission to Page 488 U. S. 376 consider in establishing categories of defendants. These include
the offender's age, education, vocational skills, mental and
emotional condition, physical condition (including drug
dependence), previous employment record, family ties and
responsibilities, community ties, role in the offense, criminal
history, and degree of dependence upon crime for a livelihood. §
994(d)(1)-(11). [ Footnote
10 ] Congress also prohibited the Commission from considering
the "race, sex, national origin, creed, and socioeconomic status of
offenders," § 994(d), and instructed that the guidelines should
reflect the "general inappropriateness" of considering certain
other factors, such as current unemployment, that might serve as
proxies for forbidden factors, § 994(e).

															In addition to these overarching constraints, Congress provided
even more detailed guidance to the Commission about categories of
offenses and offender characteristics. Congress directed that
guidelines require a term of confinement at or near the statutory
maximum for certain crimes of violence and for drug offenses,
particularly when committed by recidivists. § 994(h). Congress
further directed that the Commission assure a substantial term of
imprisonment for an offense constituting a third felony conviction,
for a career Page 488 U. S. 377 felon, for one convicted of a managerial role in a racketeering
enterprise, for a crime of violence by an offender on release from
a prior felony conviction, and for an offense involving a
substantial quantity of narcotics. § 994(i). Congress also
instructed "that the guidelines reflect . . . the general
appropriateness of imposing a term of imprisonment" for a crime of
violence that resulted in serious bodily injury. On the other hand,
Congress directed that guidelines reflect the general
inappropriateness of imposing a sentence of imprisonment

															"in cases in which the defendant is a first offender who has not
been convicted of a crime of violence or an otherwise serious
offense."

															§ 994(j). Congress also enumerated various aggravating and
mitigating circumstances, such as, respectively, multiple offenses
or substantial assistance to the Government, to be reflected in the
guidelines. §§ 994(l) and (n). In other words, although Congress
granted the Commission substantial discretion in formulating
guidelines, in actuality it legislated a full hierarchy of
punishment -- from near maximum imprisonment, to substantial
imprisonment, to some imprisonment, to alternatives -- and
stipulated the most important offense and offender characteristics
to place defendants within these categories.

															We cannot dispute petitioner's contention that the Commission
enjoys significant discretion in formulating guidelines. The
Commission does have discretionary authority to determine the
relative severity of federal crimes and to assess the relative
weight of the offender characteristics that Congress listed for the
Commission to consider. See §§ 994(c) and (d) (Commission
instructed to consider enumerated factors as it deems them to be
relevant). The Commission also has significant discretion to
determine which crimes have been punished too leniently, and which
too severely. § 994(m). Congress has called upon the Commission to
exercise its judgment about which types of crimes and which Page 488 U. S. 378 types of criminals are to be considered similar for the purposes
of sentencing. [ Footnote
11 ]

															But our cases do not at all suggest that delegations of this
type may not carry with them the need to exercise judgment on
matters of policy. In Yakus v. United States, 321 U.
S. 414 (1944), the Court upheld a delegation to the
Price Administrator to fix commodity prices that "in his judgment
will be generally fair and equitable and will effectuate the
purposes of this Act" to stabilize prices and avert speculation. See id. at 321 U. S. 420 .
In National Broadcasting Co. v. United States, 319 U. S. 190 (1943), we upheld a delegation to the Federal Communications
Commission granting it the authority to promulgate regulations in
accordance with its view of the "public interest." In Yakus, the Court laid down the applicable principle:

															"It is no objection that the determination of facts and the"

															inferences to be drawn from them in the light of the statutory
standards and declaration of policy call for the exercise Page 488 U. S. 379 of judgment, and for the formulation of subsidiary
administrative policy within the prescribed statutory framework. .
. .

															" * * * *" ". . . Only if we could say that there is an absence of
standards for the guidance of the Administrator's action, so that
it would be impossible in a proper proceeding to ascertain whether
the will of Congress has been obeyed, would we be justified in
overriding its choice of means for effecting its declared purpose.
. . ."

															321 U.S. at 321 U. S.
425 -426.

															Congress has met that standard here. The Act sets forth more
than merely an "intelligible principle" or minimal standards. One
court has aptly put it:

															"The statute outlines the policies which prompted establishment
of the Commission, explains what the Commission should do and how
it should do it, and sets out specific directives to govern
particular situations." United States v. Chambless, 680 F.
Supp. 793 , 796 (ED La.1988).

															Developing proportionate penalties for hundreds of different
crimes by a virtually limitless array of offenders is precisely the
sort of intricate, labor-intensive task for which delegation to an
expert body is especially appropriate. Although Congress has
delegated significant discretion to the Commission to draw
judgments from its analysis of existing sentencing practice and
alternative sentencing models,

															"Congress is not confined to that method of executing its policy
which involves the least possible delegation of discretion to
administrative officers." Yakus v. United States, 321 U.S. at 321 U. S.
425 -426. We have no doubt that, in the hands of the
Commission, "the criteria which Congress has supplied are wholly
adequate for carrying out the general policy and purpose" of the
Act. Sunshine Coal Co. v. Adkins, 310 U.
S. 381 , 310 U. S. 398 (1940). Page 488 U. S. 380 IV Separation of Powers Having determined that Congress has set forth sufficient
standards for the exercise of the Commission's delegated authority,
we turn to Mistretta's claim that the Act violates the
constitutional principle of separation of powers.

															This Court consistently has given voice to, and has reaffirmed,
the central judgment of the Framers of the Constitution that,
within our political scheme, the separation of governmental powers
into three coordinate Branches is essential to the preservation of
liberty. See, e.g., Morrison v. Olson, 487 U.
S. 654 , 487 U. S.
685 -696 (1988); Bowsher v. Synar, 478 U.S. at 478 U. S. 725 .
Madison, in writing about the principle of separated powers, said:
"No political truth is certainly of greater intrinsic value or is
stamped with the authority of more enlightened patrons of liberty."
The Federalist No. 47, p. 324 (J. Cooke ed.1961).

															In applying the principle of separated powers in our
jurisprudence, we have sought to give life to Madison's view of the
appropriate relationship among the three coequal Branches.
Accordingly, we have recognized, as Madison admonished at the
founding, that, while our Constitution mandates that

															"each of the three general departments of government [must
remain] entirely free from the control or coercive influence,
direct or indirect, of either of the others," Humphrey's Executor v. United States, 295 U.
S. 602 , 295 U. S. 629 (1935), the Framers did not require -- and indeed rejected -- the
notion that the three Branches must be entirely separate and
distinct. See, e.g., Nixon v. Administrator of General
Services, 433 U. S. 425 , 433 U. S. 443 (1977) (rejecting as archaic complete division of authority between
the three Branches); United States v. Nixon, 418 U.
S. 683 (1974) (affirming Madison's flexible approach to
separation of powers). Madison, defending the Constitution against
charges that it established insufficiently separate Branches,
addressed the point directly. Separation of powers, he wrote,
"d[oes] not mean that these [three] Page 488 U. S. 381 departments ought to have no partial agency in, or no controul over the acts of each other," but rather

															"that where the whole power of one department is
exercised by the same hands which possess the whole power
of another department, the fundamental principles of a free
constitution, are subverted."

															The Federalist No. 47, pp. 325-326 (J. Cooke ed.1961) (emphasis
in original). See Nixon v. Administrator of General
Services, 433 U.S. at 433 U. S. 442 , n. 5. Madison recognized that our
constitutional system imposes upon the Branches a degree of
overlapping responsibility, a duty of interdependence as well as
independence the absence of which "would preclude the establishment
of a Nation capable of governing itself effectively." Buckley
v. Valeo, 424 U. S. 1 , 424 U. S. 121 (1976). In a passage now commonplace in our cases, Justice Jackson
summarized the pragmatic, flexible view of differentiated
governmental power to which we are heir:

															"While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the
dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but
reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.
S. 579 , 343 U. S. 635 (1952) (concurring opinion).

															In adopting this flexible understanding of separation of powers,
we simply have recognized Madison's teaching that the greatest
security against tyranny -- the accumulation of excessive authority
in a single Branch -- lies not in a hermetic division between the
Branches, but in a carefully crafted system of checked and balanced
power within each Branch. "[T]he greatest security," wrote
Madison,

															"against a gradual concentration of the several powers in the
same department, consists in giving to those who administer each
department, the necessary constitutional means, and personal
motives, to resist encroachments of the others."

															The Federalist No. 51, p. 349 (J. Cooke ed.1961). Accordingly,
as we have noted Page 488 U. S. 382 many times, the Framers

															"built into the tripartite Federal Government . . . a
self-executing safeguard against the encroachment or aggrandizement
of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. at 424 U. S. 122 . See also INS v. Chadha, 462 U. S. 919 , 462 U. S. 951 (1983).

															It is this concern of encroachment and aggrandizement that has
animated our separation of powers jurisprudence and aroused our
vigilance against the "hydraulic pressure inherent within each of
the separate Branches to exceed the outer limits of its power." Ibid. Accordingly, we have not hesitated to strike down
provisions of law that either accrete to a single Branch powers
more appropriately diffused among separate Branches or that
undermine the authority and independence of one or another
coordinate Branch. For example, just as the Framers recognized the
particular danger of the Legislative Branch's accreting to itself
judicial or executive power, [ Footnote 12 ] so too have we invalidated attempts by
Congress to exercise the responsibilities of other Branches or to
reassign powers vested by the Constitution in either the Judicial
Branch or the Executive Branch. Bowsher v. Synar, 478 U. S. 714 (1986) (Congress may not exercise removal power over officer
performing executive functions); INS v. Chadha, supra, (Congress may not control execution of laws except through Art. I
procedures); Northern Pipeline Construction Co. v. Marathon
Pipe Line Co., 458 U. S. 50 (1982)
(Congress may not confer Art. III power on Art. I judge). By the
same token, we have upheld statutory provisions that to some degree
commingle the functions of the Branches, but that pose no danger of
either aggrandizement or encroachment. Morrison v. Olson, 487 U. S. 654 (1988) (upholding judicial appointment of independent counsel); Commodity Futures Trading Comm'n v. Schor, 478 U.
S. 833 (1986) (upholding Page 488 U. S. 383 agency's assumption of jurisdiction over state law
counterclaims).

															In Nixon v. Administrator of General Services, supra, upholding, against a separation of powers challenge, legislation
providing for the General Services Administration to control
Presidential papers after resignation, we described our separation
of powers inquiry as focusing

															"on the extent to which [a provision of law] prevents the
Executive Branch from accomplishing its constitutionally assigned
functions."

															433 U.S. at 433 U. S. 443 (citing United States v. Nixon, 418 U.S. at 418 U. S.
711 -712.) [ Footnote
13 ] In cases specifically involving the Judicial Branch, we
have expressed our vigilance against two dangers: first, that the
Judicial Branch neither be assigned nor allowed "tasks that are
more properly accomplished by [other] branches," Morrison v.
Olson, 487 U.S. at 487 U. S.
680 -681, and, second, that no provision of law
"impermissibly threatens the institutional integrity of the
Judicial Branch." Commodity Futures Trading Comm'n v.
Schor, 478 U.S. at 478 U. S.
851 .

															Mistretta argues that the Act suffers from each of these
constitutional infirmities. He argues that Congress, in
constituting the Commission as it did, effected an unconstitutional
accumulation of power within the Judicial Branch while at the same
time undermining the Judiciary's independence and integrity.
Specifically, petitioner claims that, in delegating to an
independent agency within the Judicial Branch the power to
promulgate sentencing guidelines, Congress unconstitutionally has
required the Branch, and individual Article III judges, to exercise
not only their judicial authority, but legislative authority -- the
making of sentencing policy -- as well. Such rulemaking authority,
petitioner contends, may be exercised by Congress, or delegated by
Congress to the Page 488 U. S. 384 Executive, but may not be delegated to or exercised by the
Judiciary. Brief for Petitioner 21.

															At the same time, petitioner asserts, Congress
unconstitutionally eroded the integrity and independence of the
Judiciary by requiring Article III judges to sit on the Commission,
by requiring that those judges share their rulemaking authority
with nonjudges, and by subjecting the Commission's members to
appointment and removal by the President. According to petitioner,
Congress, consistent with the separation of powers, may not upset
the balance among the Branches by co-opting federal judges into the
quintessentially political work of establishing sentencing
guidelines, by subjecting those judges to the political whims of
the Chief Executive, and by forcing judges to share their power
with nonjudges. Id. at 15-35.

															"When this Court is asked to invalidate a statutory provision
that has been approved by both Houses of the Congress and signed by
the President, particularly an Act of Congress that confronts a
deeply vexing national problem, it should only do so for the most
compelling constitutional reasons." Bowsher v. Synar, 478 U.S. at 478 U. S. 736 (opinion concurring in judgment). Although the unique composition
and responsibilities of the Sentencing Commission give rise to
serious concerns about a disruption of the appropriate balance of
governmental power among the coordinate Branches, we conclude, upon
close inspection, that petitioner's fears for the fundamental
structural protections of the Constitution prove, at least in this
case, to be "more smoke than fire," and do not compel us to
invalidate Congress' considered scheme for resolving the seemingly
intractable dilemma of excessive disparity in criminal
sentencing. A Location of the Commission The Sentencing Commission unquestionably is a peculiar
institution within the framework of our Government. Although placed
by the Act in the Judicial Branch, it is not a Page 488 U. S. 385 court, and does not exercise judicial power. Rather, the
Commission is an "independent" body comprised of seven voting
members, including at least three federal judges, entrusted by
Congress with the primary task of promulgating sentencing
guidelines. 28 U.S.C. § 991(a). Our constitutional principles of
separated powers are not violated, however, by mere anomaly or
innovation. Setting to one side, for the moment, the question
whether the composition of the Sentencing Commission violates the
separation of powers, we observe that Congress' decision to create
an independent rulemaking body to promulgate sentencing guidelines
and to locate that body within the Judicial Branch is not
unconstitutional unless Congress has vested in the Commission
powers that are more appropriately performed by the other Branches
or that undermine the integrity of the Judiciary.

															According to express provision of Article III, the judicial
power of the United States is limited to "Cases" and
"Controversies." See Muskrat v. United States, 219 U. S. 346 , 219 U. S. 356 (1911). In implementing this limited grant of power, we have
refused to issue advisory opinions or to resolve disputes that are
not justiciable. See, e.g., Flast v. Cohen, 392 U. S.
83 (1968); United States v.
Ferreira , 13 How. 40 (1852). These doctrines help
to ensure the independence of the Judicial Branch by precluding
debilitating entanglements between the Judiciary and the two
political Branches, and prevent the Judiciary from encroaching into
areas reserved for the other Branches by extending judicial power
to matters beyond those disputes "traditionally thought to be
capable of resolution through the judicial process." Flast v.
Cohen, 392 U.S. at 392 U. S. 97 ; see also United States Parole Comm'n v. Geraghty, 445 U.S.
at 445 U. S. 396 .
As a general principle, we stated as recently as last Term that
" executive or administrative duties of a nonjudicial nature may
not be imposed on judges holding office under Art. III of the
Constitution.'" Morrison v. Olson, 487 U.S. at 487 U. S. 677 ,
quoting Buckley v. Valeo, 424 U.S. at 424 U. S. 123 ,
citing in turn United States v. Ferreira, supra, and Hayburn's Case , 2 Dall. 409 (1792). Page 488 U. S. 386 Nonetheless, we have recognized significant exceptions to this
general rule, and have approved the assumption of some
nonadjudicatory activities by the Judicial Branch. In keeping with
Justice Jackson's Youngstown admonition that the
separation of powers contemplates the integration of dispersed
powers into a workable Government, we have recognized the
constitutionality of a "twilight area" in which the activities of
the separate Branches merge. In his dissent in Myers v. United
States, 272 U. S. 52 (1926), Justice Brandeis explained that the separation of powers
"left to each [Branch] power to exercise, in some respects,
functions in their nature executive, legislative and judicial." Id. at 272 U. S.
291 .

															That judicial rulemaking, at least with respect to some
subjects, falls within this twilight area is no longer an issue for
dispute. None of our cases indicate that rulemaking per se is a function that may not be performed by an entity within the
Judicial Branch, either because rulemaking is inherently
nonjudicial or because it is a function exclusively committed to
the Executive Branch. [ Footnote
14 ] On the contrary, we specifically Page 488 U. S. 387 have held that Congress, in some circumstances, may confer
rulemaking authority on the Judicial Branch. In Sibbach v.
Wilson & Co., 312 U. S. 1 (1941),
we upheld a challenge to certain rules promulgated under the Rules
Enabling Act of 1934, which conferred upon the Judiciary the power
to promulgate federal rules of civil procedure. See 28
U.S.C. § 2072. We observed:

															"Congress has undoubted power to regulate the practice and
procedure of federal courts, and may exercise that power by
delegating to this or other federal courts authority to make rules
not inconsistent with the statutes or constitution of the United
States."

															312 U.S. at 312 U. S. 9 -10
(footnote omitted). This passage in Sibbach simply echoed
what had been our view since Wayman v.
Southard , 10 Wheat. 1, 23 U. S. 43 (1825), decided more than a century earlier, where Chief Justice
Marshall wrote for the Court that rulemaking power pertaining to
the Judicial Branch may be "conferred on the judicial department."
Discussing this delegation of rulemaking power, the Court found
Congress authorized

															"to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers
vested by this constitution in the government of the United States,
or in any department or officer thereof. The judicial department is
invested with jurisdiction in certain specified cases, in all which
it has power to render judgment. " Page 488 U. S. 388 "That a power to make laws for carrying into execution all the
judgments which the judicial department has power to pronounce, is
expressly conferred by this clause, seems to be one of those plain
propositions which reasoning cannot render plainer." Id. at 23 U. S. 22 . See also Hanna v. Plumer, 380 U.
S. 460 (1965). Pursuant to this power to delegate
rulemaking authority to the Judicial Branch, Congress expressly has
authorized this Court to establish rules for the conduct of its own
business and to prescribe rules of procedure for lower federal
courts in bankruptcy cases, in other civil cases, and in criminal
cases, and to revise the Federal Rules of Evidence. See
generally J. Weinstein, Reform of Court Rule-Making Procedures
(1977).

															Our approach to other nonadjudicatory activities that Congress
has vested either in federal courts or in auxiliary bodies within
the Judicial Branch has been identical to our approach to judicial
rulemaking: consistent with the separation of powers, Congress may
delegate to the Judicial Branch nonadjudicatory functions that do
not trench upon the prerogatives of another Branch and that are
appropriate to the central mission of the Judiciary. Following this
approach, we specifically have upheld not only Congress' power to
confer on the Judicial Branch the rulemaking authority contemplated
in the various enabling acts, but also to vest in judicial councils
authority to "make all necessary orders for the effective and
expeditious administration of the business of the courts.'" Chandler v. Judicial Council, 398 U. S.
74 , 398 U. S. 86 , n.
7 (1970), quoting 28 U.S.C. § 332 (1970 ed.). Though not the
subject of constitutional challenge, by established practice we
have recognized Congress' power to create the Judicial Conference
of the United States, the Rules Advisory Committees that it
oversees, and the Administrative Office of the United States
Courts, whose myriad responsibilities Page 488 U. S. 389 include the administration of the entire probation service.
[ Footnote 15 ] These
entities, some of which are comprised of judges, others of judges
and nonjudges, still others of nonjudges only, do not exercise
judicial power in the constitutional sense of deciding cases and
controversies, but they share the common purpose of providing for
the fair and efficient fulfillment of responsibilities that are
properly the province of the Judiciary. Thus, although the judicial
power of the United States is limited by express provision of
Article III to "Cases" and "Controversies," we have never held, and
have clearly disavowed in practice, that the Constitution prohibits
Congress from assigning to courts or auxiliary bodies within the
Judicial Branch administrative or rulemaking duties that, in the
words of Chief Justice Marshall, are "necessary and proper . . .
for carrying into execution all the judgments which the judicial
department has power to pronounce." Wayman v. Southard, 10
Wheat. at 22. [ Footnote 16 ]
Because of their Page 488 U. S. 390 close relation to the central mission of the Judicial Branch,
such extrajudicial activities are consonant with the integrity of
the Branch, and are not more appropriate for another Branch.

															In light of this precedent and practice, we can discern no
separation of powers impediment to the placement of the Sentencing
Commission within the Judicial Branch. As we described at the
outset, the sentencing function long has been a peculiarly shared
responsibility among the Branches of Government, and has never been
thought of as the exclusive constitutional province of any one
Branch. See, e.g., United States v. Addonizio, 442 U.S. at 442 U. S.
188 -189. For more than a century, federal judges have
enjoyed wide discretion to determine the appropriate sentence in
individual cases, and have exercised special authority to determine
the sentencing factors to be applied in any given case. Indeed, the
legislative history of the Act makes clear that Congress' decision
to place the Commission within the Judicial Branch reflected
Congress"'strong feeling" that sentencing has been and should
remain "primarily a judicial function." Report, at 159. That
Congress should vest such rulemaking in the Judicial Branch, far
from being "incongruous" or vesting within the Judiciary
responsibilities that more appropriately belong to another Branch,
simply acknowledges the role that Page 488 U. S. 391 the Judiciary always has played, and continues to play, in
sentencing. [ Footnote
17 ]

															Given the consistent responsibility of federal judges to
pronounce sentence within the statutory range established by
Congress, we find that the role of the Commission in promulgating
guidelines for the exercise of that judicial function bears
considerable similarity to the role of this Court in establishing
rules of procedure under the various enabling Acts. Such
guidelines, like the Federal Rules of Criminal and Civil Procedure,
are court rules -- rules, to paraphrase Chief Justice Marshall's
language in Wayman, for carrying into execution judgments
that the Judiciary has the power to pronounce. Just as the rules of
procedure bind judges and courts in the proper management of the
cases before them, so the Guidelines bind judges and courts in the
exercise of their uncontested responsibility to pass sentence in
criminal cases. In other words, the Commission's functions, like
this Court's function in promulgating procedural rules, are clearly
attendant to a central element of the historically acknowledged
mission of the Judicial Branch.

															Petitioner nonetheless objects that the analogy between the
Guidelines and the rules of procedure is flawed: although the
Judicial Branch may participate in rulemaking and administrative
work that is "procedural" in nature, it may not assume, it is said,
the "substantive" authority over sentencing Page 488 U. S. 392 policy that Congress, has delegated to the Commission. Such
substantive decisionmaking, petitioner contends, entangles the
Judicial Branch in essentially political work of the other
Branches, and unites both judicial and legislative power in the
Judicial Branch.

															We agree with petitioner that the nature of the Commission's
rulemaking power is not strictly analogous to this Court's
rulemaking power under the enabling Acts. Although we are loathe to
enter the logical morass of distinguishing between substantive and
procedural rules, see Sun Oil Co. v. Wortman, 486 U.
S. 717 (1988) (distinction between substance and
procedure depends on context), and although we have recognized that
the Federal Rules of Civil Procedure regulate matters "falling
within the uncertain area between substance and procedure, [and]
are rationally capable of classification as either," Hanna v.
Plumer, 380 U.S. at 380 U. S. 472 ,
we recognize that the task of promulgating rules regulating
practice and pleading before federal courts does not involve the
degree of Page 488 U. S. 393 political judgment integral to the Commission's formulation of
sentencing guidelines. [ Footnote
18 ] To be sure, all rulemaking is nonjudicial in the sense that
rules impose standards of general application divorced from the
individual fact situation which ordinarily forms the predicate for
judicial action. Also, this Court's rulemaking under the enabling
Acts has been substantive and political in the sense that the rules
of procedure have important effects on the substantive rights of
litigants. [ Footnote 19 ]
Nonetheless, the degree of political judgment about crime and
criminality exercised by the Commission and the scope of the
substantive effects of its work does to some extent set its
rulemaking powers apart from prior judicial rulemaking. Cf.
Miller v. Florida, 482 U. S. 423 (1987) (state sentencing guidelines not procedural).

															We do not believe, however, that the significantly political
nature of the Commission's work renders unconstitutional its
placement within the Judicial Branch. Our separation of powers
analysis does not turn on the labeling of an activity as
"substantive," as opposed to "procedural," or "political," as
opposed to "judicial." See Bowsher v. Synar, 478 U.S. at 478 U. S. 749 ("[G]overnmental power cannot always be readily characterized with
only one . . . labe[l]") (opinion concurring in judgment). Rather,
our inquiry is focused on the

															"unique aspects of the congressional plan at issue and its
practical consequences in light of the larger concerns that
underlie Article III." Commodity Futures Trading Comm'n v. Schor, 478 U.S. at 478 U. S. 857 .
In this case, the "practical consequences" of locating the
Commission within the Judicial Branch pose no threat of undermining
the integrity of the Judicial Branch or of expanding the powers of
the Judiciary beyond constitutional bounds by uniting within the
Branch the political or quasi-legislative power of the Commission
with the judicial power of the courts.

															First, although the Commission is located in the Judicial
Branch, its powers are not united with the powers of the Judiciary
in a way that has meaning for separation of powers analysis.
Whatever constitutional problems might arise if the powers of the
Commission were vested in a court, the Commission is not a court,
does not exercise judicial power, and is not controlled by or
accountable to members of the Judicial Branch. The Commission, on
which members of the Judiciary may be a minority, is an independent
agency in every relevant sense. In contrast to a court's exercising
judicial power, the Commission is fully accountable to Congress,
which can revoke or amend any or all of the Guidelines Page 488 U. S. 394 as it sees fit, either within the 180-day waiting period, see § 235(a)(1)(B)(ii)(III) of the Act, 98 Stat. 2032, or
at any time. In contrast to a court, the Commission's members are
subject to the President's limited powers of removal. In contrast
to a court, its rulemaking is subject to the notice and comment
requirements of the Administrative Procedure Act, 28 U.S.C. §
994(x). While we recognize the continuing vitality of Montesquieu's
admonition: " Were the power of judging joined with the
legislative, the life and liberty of the subject would be exposed
to arbitrary controul,'" The Federalist No. 47, p. 326 (J. Cooke
ed.1961) (Madison), quoting Montesquieu, because Congress vested
the power to promulgate sentencing guidelines in an independent
agency, not a court, there can be no serious argument that Congress
combined legislative and judicial power within the Judicial Branch.
[ Footnote 20 ] Page 488 U. S.
395 Second, although the Commission wields rulemaking power and not
the adjudicatory power exercised by individual judges when passing
sentence, the placement of the Sentencing Commission in the
Judicial Branch has not increased the Branch's authority. Prior to
the passage of the Act, the Judicial Branch, as an aggregate,
decided precisely the questions assigned to the Commission: what
sentence is appropriate to what criminal conduct under what
circumstances. It was the everyday business of judges, taken
collectively, to evaluate and weigh the various aims of sentencing
and to apply those aims to the individual cases that came before
them. The Sentencing Commission does no more than this, albeit
basically through the methodology of sentencing guidelines, rather
than entirely individualized sentencing determinations.
Accordingly, in placing the Commission in the Judicial Branch,
Congress cannot be said to have aggrandized the authority of that
Branch or to have deprived the Executive Branch of a power it once
possessed. Indeed, because the Guidelines have the effect of
promoting sentencing within a narrower range than was previously
applied, the power of the Judicial Branch is, if anything, somewhat
diminished by the Act. And, since Congress did not
unconstitutionally delegate its own authority, the Act does not
unconstitutionally diminish Congress' authority. Thus, although
Congress has authorized the Commission to exercise a greater degree
of political judgment than has been exercised in the past by any
one entity within the Judicial Branch, in the unique context of
sentencing, this authorization does nothing to upset the balance of
power among the Branches.

															What Mistretta's argument comes down to, then, is not that the
substantive responsibilities of the Commission aggrandize the
Judicial Branch, but that that Branch is inevitably weakened by its
participation in policymaking. We do not believe, however, that the
placement within the Judicial Page 488 U. S. 396 Branch of an independent agency charged with the promulgation of
sentencing guidelines can possibly be construed as preventing the
Judicial Branch "from accomplishing its constitutionally assigned
functions." Nixon v. Administrator of General Services, 433 U.S. at 433 U. S. 443 .
Despite the substantive nature of its work, the Commission is not
incongruous or inappropriate to the Branch. As already noted,
sentencing is a field in which the Judicial Branch long has
exercised substantive or political judgment. What we said in Morrison when upholding the power of the Special Division
to appoint independent counsels applies with even greater force
here: "This is not a case in which judges are given power . . . in
an area in which they have no special knowledge or expertise." 487
U.S. at 487 U. S. 676 ,
n. 13. On the contrary, Congress placed the Commission in the
Judicial Branch precisely because of the Judiciary's special
knowledge and expertise.

															Nor do the Guidelines, though substantive, involve a degree of
political authority inappropriate for a nonpolitical Branch.
Although the Guidelines are intended to have substantive effects on
public behavior (as do the rules of procedure), they do not bind or
regulate the primary conduct of the public or vest in the Judicial
Branch the legislative responsibility for establishing minimum and
maximum penalties for every crime. They do no more than fetter the
discretion of sentencing judges to do what they have done for
generations -- impose sentences within the broad limits established
by Congress. Given their limited reach, the special role of the
Judicial Branch in the field of sentencing, and the fact that the
Guidelines are promulgated by an independent agency and not a
court, it follows that, as a matter of "practical consequences,"
the location of the Sentencing Commission within the Judicial
Branch simply leaves with the Judiciary what long has belonged to
it.

															In sum, since substantive judgment in the field of sentencing
has been and remains appropriate Page 488 U. S. 397 to the Judicial Branch, and the methodology of rulemaking has
been and remains appropriate to that Branch, Congress' considered
decision to combine these function in an independent Sentencing
Commission and to locate that Commission within the Judicial Branch
does not violate the principle of separation of powers. B Composition of the Commission We now turn to petitioner's claim that Congress' decision to
require at least three federal judges to serve on the Commission
and to require those judges to share their authority with nonjudges
undermines the integrity of the Judicial Branch.

															The Act provides in part:

															"At least three of [the Commission's] members shall be Federal
judges selected [by the President] after considering a list of six
judges recommended to the President by the Judicial Conference of
the United States."

															28 U.S.C. § 991(a). Petitioner urges us to strike down the Act
on the ground that its requirement of judicial participation on the
Commission unconstitutionally conscripts individual federal judges
for political service, and thereby undermines the essential
impartiality of the Judicial Branch. We find Congress' requirement
of judicial service somewhat troublesome, but we do not believe
that the Act impermissibly interferes with the functioning of the
Judiciary.

															The text of the Constitution contains no prohibition against the
service of active federal judges on independent commissions such as
that established by the Act. The Constitution does include an
Incompatibility Clause applicable to national legislators:

															"No Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the
Authority of the United States, which shall have been created, or
the Emoluments whereof shall have been encreased during such time;
and no Person holding any Office under the United States, shall be
a Page 488 U. S. 398 Member of either House during his Continuance in Office."

															U.S.Const., Art. I, § 6, cl. 2. No comparable restriction
applies to judges, and we find it at least inferentially meaningful
that, at the Constitutional Convention, two prohibitions against
plural office-holding by members of the Judiciary were proposed,
but did not reach the floor of the Convention for a vote. [ Footnote 21 ]

															Our inferential reading that the Constitution does not prohibit
Article III judges from undertaking extrajudicial duties finds
support in the historical practice of the Founders after
ratification. Our early history indicates that the Framers
themselves did not read the Constitution as forbidding
extrajudicial service by federal judges. The first Chief Justice,
John Jay, served simultaneously as Page 488 U. S. 399 Chief Justice and as Ambassador to England, where he negotiated
the treaty that bears his name. Oliver Ellsworth served
simultaneously as Chief Justice and as Minister to France. While he
was Chief Justice, John Marshall served briefly as Secretary of
State, and was a member of the Sinking Fund Commission with
responsibility for refunding the Revolutionary War debt.

															All these appointments were made by the President with the
"Advice and Consent" of the Senate. Thus, at a minimum, both the
Executive and Legislative Branches acquiesced in the assumption of
extrajudicial duties by judges. In addition, although the records
of Congress contain no reference to the confirmation debate,
Charles Warren, in his history of this Court, reports that the
Senate specifically rejected by a vote of 18-8 a resolution
proposed during the debate over Jay's nomination to the effect that
such extrajudicial service was "contrary to the spirit of the
Constitution." 1 C. Warren, The Supreme Court in United States
History 119 (rev. ed.1937). This contemporaneous practice by the
Founders themselves is significant evidence that the constitutional
principle of separation of powers does not absolutely prohibit
extrajudicial service. See Bowsher v. Synar, 478 U.S. at 478 U. S.
723 -724 (actions by members of the First Congress
provide contemporaneous and weighty evidence about the meaning of
the Constitution). [ Footnote
22 ] Page 488 U. S. 400 Subsequent history, moreover, reveals a frequent and continuing,
albeit controversial, practice of extrajudicial service. [ Footnote 23 ] In 1877, five Justices
served on the Election Commission that resolved the hotly contested
Presidential election of 1876, where Samuel J. Tilden and
Rutherford B. Hayes were the contenders. Justices Nelson, Fuller,
Brewer, Hughes, Day, Roberts, and Van Devanter served on various
arbitral commissions. Justice Roberts was a member of the
commission organized to investigate the attack on Pearl Harbor.
Justice Jackson was one of the prosecutors at the Nuremberg trials;
and Chief Justice Warren presided over the commission investigating
the assassination of President Kennedy. [ Footnote 24 ] Such service has been no less a practice
among lower court federal judges. [ Footnote 25 ] While these extrajudicial activities spawned
spirited Page 488 U. S. 401 discussion and frequent criticism, and although some of the
judges who undertook these duties sometimes did so with
reservation, and may have looked back on their service with regret,
"traditional ways of conducting government . . . give meaning" to
the Constitution. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. at 343 U. S. 610 (concurring opinion). Our 200-year tradition of extrajudicial
service is additional evidence that the doctrine of separated
powers does not prohibit judicial participation in certain
extrajudicial activity. [ Footnote 26 ] Page 488 U. S. 402 Furthermore, although we have not specifically addressed the
constitutionality of extrajudicial service, two of our precedents
reflect at least an early understanding by this Court that the
Constitution does not preclude judges from assuming extrajudicial
duties in their individual capacities. In Hayburn's
Case , 2 Dall. 409 (1792), the Court considered a
request for a writ of mandamus ordering a Circuit Court to execute
a statute empowering federal and state courts to set pensions for
disabled Revolutionary War veterans. The statute authorized the
courts to determine monthly disability payments, but it made those
determinations reviewable by the Secretary of War. Because
Congress, by an amendment of the statute, rendered the case moot,
the Court did not pass on the constitutional issue. Mr. Dallas, in
reporting the case, included in the margin three Circuit Court
rulings on the statute. All three concluded that the powers
conferred could not be performed by an Article III court. The
"judicial Power" of the United States did not extend to duties more
properly performed by the Executive. See Morrison v.
Olson, 487 U.S. at 487 U. S.
677 -678, n. 15 (characterizing Hayburn's Case ).
As this Court later observed in United
States v. Ferreira , 13 How. 40 (1852), however, the
New York Circuit, in 1791, with a bench consisting of Chief Justice
Jay, Justice Cushing, and District Judge Duane, believed that
individual judges, acting not in their judicial capacities, but as
individual commissioners, could exercise the duties conferred upon
them by the statute. Neither of the other two courts expressed a
definitive view whether judges acting as commissioners could make
disability determinations reviewable by the Secretary of War. In Ferreira, however, this Court concluded that, although the
Circuit Courts were not fully in agreement as to whether the
statute could be construed as conferring the duties on the judges
as commissioners, if the statute was subject to that
construction,

															"there seems to have been no doubt, Page 488 U. S. 403 at that time, but that they might constitutionally exercise it,
and the Secretary constitutionally revise their decisions." Id. at 54 U. S. 50 . Ferreira itself concerned a statute authorizing a
Federal District Court in Florida to adjudicate claims for losses
for which the United States was responsible under the 1819 treaty
by which Spain ceded Florida to the United States. As in Hayburn's Case, the court's determination was to be
reported to an executive officer, the Secretary of the Treasury,
who would exercise final judgment as to whether the claims should
be paid. 13 How. at 54 U. S. 45 -47.
This Court recognized that the powers conferred on the District
Court were "judicial in their nature," in the sense that they
called for "judgment and discretion." Id. at 54 U. S. 48 .
Nonetheless, we concluded that those powers were not "judicial . .
. in the sense in which judicial power is granted by the
Constitution to the courts of the United States." Ibid. Because the District Court's decision was not an exercise of
judicial power, this Court found itself without jurisdiction to
hear the appeal. Id. at 54 U. S.
51 -52.

															We did not conclude in Ferreira, however, that Congress
could not confer on a federal judge the function of resolving
administrative claims. On the contrary, we expressed general
agreement with the view of some of the judges in Hayburn's
Case that, while such administrative duties could not be
assigned to a court, or to judges acting as part of a court, such
duties could be assigned to judges acting individually as
commissioners. Although we did not decide the question, we
expressed reservation about whether the District Judge in Florida
could act legitimately as a commissioner, since he was not
appointed as such by the President pursuant to his Article II power
to appoint officers of the United States. 13 How. at 54 U. S. 51 . In
sum, Ferreira, like Hayburn's Case, suggests that
Congress may authorize a federal judge, in an individual capacity,
to perform an executive function without violating the separation
of powers. Page 488 U. S. 404 Accord, United States v. Yale Todd (1794) (unreported
decision discussed in the margin of the opinion in Ferreira, 13 How. at 54 U. S.
52 -53).

															In light of the foregoing history and precedent, we conclude
that the principle of separation of powers does not absolutely
prohibit Article III judges from serving on commissions such as
that created by the Act. The judges serve on the Sentencing
Commission not pursuant to their status and authority as Article
III judges, but solely because of their appointment by the
President as the Act directs. Such power as these judges wield as
Commissioners is not judicial power; it is administrative power
derived from the enabling legislation. Just as the nonjudicial
members of the Commission act as administrators, bringing their
experience and wisdom to bear on the problems of sentencing
disparity, so too the judges, uniquely qualified on the subject of
sentencing, assume a wholly administrative role upon entering into
the deliberations of the Commission. In other words, the
Constitution, at least as a per se matter, does not forbid
judges from wearing two hats; it merely forbids them from wearing
both hats at the same time.

															This is not to suggest, of course, that every kind of
extrajudicial service under every circumstance necessarily accords
with the Constitution. That the Constitution does not absolutely
prohibit a federal judge from assuming extrajudicial duties does
not mean that every extrajudicial service would be compatible with,
or appropriate to, continuing service on the bench; nor does it
mean that Congress may require a federal judge to assume
extrajudicial duties as long as the judge is assigned those duties
in an individual, not judicial, capacity. The ultimate inquiry
remains whether a particular extrajudicial assignment undermines
the integrity of the Judicial Branch. [ Footnote 27 ] Page 488 U. S. 405 With respect to the Sentencing Commission, we understand
petitioner to argue that the service required of at least three
judges presents two distinct threats to the integrity of the
Judicial Branch. Regardless of constitutionality, this mandatory
service, it is said, diminishes the independence of the Judiciary. See Brief for Petitioner 28. It is further claimed that
the participation of judges on the Commission improperly lends
judicial prestige and an aura of judicial impartiality to the
Commission's political work. The involvement of Article III judges
in the process of policymaking, petitioner asserts, " [w]eakens
confidence in the disinterestedness of the judicatory functions.'" Ibid., quoting F. Frankfurter, Advisory Opinions, in 1
Encyclopedia of the Social Sciences 475, 478 (1930). In our view, petitioner significantly overstates the mandatory
nature of Congress' directive that at least three members of the
Commission shall be federal judges, as well as the effect of this
service on the practical operation of the Judicial Branch. Service
on the Commission by any particular judge is voluntary. The Act
does not conscript judges for the Commission. No Commission member
to date has been appointed without his consent, and we have no
reason to believe that the Act confers upon the President any
authority to Page 488 U. S. 406 force a judge to serve on the Commission against his will.
[ Footnote 28 ] Accordingly,
we simply do not face the question whether Congress may require a
particular judge to undertake the extrajudicial duty of serving on
the Commission. In Chandler v. Judicial Council, 398 U. S. 74 (1970), we found "no constitutional obstacle preventing Congress
from vesting in the Circuit Judicial Councils, as administrative
bodies," authority to administer " the business of the courts
within [each] circuit.'" Id. at 398 U. S. 86 , n.
7, quoting 28 U.S.C. § 332 (1970 ed.). [ Footnote 29 ] Indeed, Congress has created numerous
nonadjudicatory bodies, such as the Judicial Conference, that are
composed entirely, or in part, of federal judges. See 28
U.S.C. §§ 331, 332; see generally Meador, The Federal
Judiciary and Its Future Administration, 65 Va.L.Rev. 1031 (1979).
Accordingly, absent a more specific threat to judicial
independence, the fact that Congress has included federal judges on
the Commission does not itself threaten the integrity of the
Judicial Branch. Moreover, we cannot see how the service of federal judges on the
Commission will have a constitutionally significant practical
effect on the operation of the Judicial Branch. We see no reason
why service on the Commission should result in widespread judicial
recusals. That federal judges participate Page 488 U. S. 407 in the promulgation of guidelines does not affect their or other
judges' ability impartially to adjudicate sentencing issues. Cf. Mississippi Publishing Corp. v. Murphree, 326 U.
S. 438 (1946) (that this Court promulgated the Federal
Rules of Civil Procedure did not foreclose its consideration of
challenges to their validity). While, in the abstract, a
proliferation of commissions with congressionally mandated
judiciary participation might threaten judicial independence by
exhausting the resources of the Judicial Branch, that danger is far
too remote for consideration here.

															We are somewhat more troubled by petitioner's argument that the
Judiciary's entanglement in the political work of the Commission
undermines public confidence in the disinterestedness of the
Judicial Branch. While the problem of individual bias is usually
cured through recusal, no such mechanism can overcome the
appearance of institutional partiality that may arise from
judiciary involvement in the making of policy. The legitimacy of
the Judicial Branch ultimately depends on its reputation for
impartiality and nonpartisanship. That reputation may not be
borrowed by the political Branches to cloak their work in the
neutral colors of judicial action.

															Although it is a judgment that is not without difficulty, we
conclude that the participation of federal judges on the Sentencing
Commission does not threaten, either in fact or in appearance, the
impartiality of the Judicial Branch. We are drawn to this
conclusion by one paramount consideration: that the Sentencing
Commission is devoted exclusively to the development of rules to
rationalize a process that has been, and will continue to be,
performed exclusively by the Judicial Branch. In our view, this is
an essentially neutral endeavor, and one in which judicial
participation is peculiarly appropriate. Judicial contribution to
the enterprise of creating rules to limit the discretion of
sentencing judges does not enlist the resources or reputation of
the Judicial Branch in either the legislative business of
determining what conduct should be criminalized or the executive
business of enforcing the law. Page 488 U. S. 408 Rather, judicial participation on the Commission ensures that
judicial experience and expertise will inform the promulgation of
rules for the exercise of the Judicial Branch's own business --
that of passing sentence on every criminal defendant. To this end,
Congress has provided, not inappropriately, for a significant
judicial voice on the Commission.

															Justice Jackson underscored in Youngstown that the
Constitution anticipates "reciprocity" among the Branches. 343 U.S.
at 343 U. S. 635 .
As part of that reciprocity, and as part of the integration of
dispersed powers into a workable government, Congress may enlist
the assistance of judges in the creation of rules to govern the
Judicial Branch. Our principle of separation of powers anticipates
that the coordinate Branches will converse with each other on
matters of vital common interest. While we have some reservation
that Congress required such a dialogue in this case, the
Constitution does not prohibit Congress from enlisting federal
judges to present a uniquely judicial view on the uniquely judicial
subject of sentencing. In this case, at least, where the subject
lies so close to the heart of the judicial function and where
purposes of the Commission are not inherently partisan, such
enlistment is not coercion or co-optation, but merely assurance of
judicial participation.

															Finally, we reject petitioner's argument that the mixed nature
of the Commission violates the Constitution by requiring Article
III judges to share judicial power with nonjudges. As noted
earlier, the Commission is not a court, and exercises no judicial
power. Thus, the Act does not vest Article III power in nonjudges
or require Article III judges to share their power with
nonjudges. C Presidential Control The Act empowers the President to appoint all seven members of
the Commission with the advice and consent of the Senate. The Act
further provides that the President shall make his choice of
judicial appointees to the Commission after considering a list of
six judges recommended by the Judicial Page 488 U. S. 409 Conference of the United States. The Act also grants the
President authority to remove members of the Commission, although
"only for neglect of duty or malfeasance in office or for other
good cause shown." 28 U.S.C. § 991(a).

															Mistretta argues that this power of Presidential appointment and
removal prevents the Judicial Branch from performing its
constitutionally assigned functions. [ Footnote 30 ] See Nixon v. Administrator of General
Services, 433 U.S. at 433 U. S. 443 . Although we agree with petitioner that
the independence of the Judicial Branch must be "jealously guarded"
against outside interference, see Northern Pipeline Co. v.
Marathon Pipe Line Co., 458 U.S. at 458 U. S. 60 ,
and that, as Madison admonished at the founding,

															"neither of [the Branches] ought to possess directly or
indirectly, an overruling influence over the others in the
administration of their respective powers,"

															The Federalist No. 48, p. 332 (J. Cooke ed.1961), we do not
believe that the President's appointment and removal powers over
the Commission afford him influence over the functions of the
Judicial Branch or undue sway over its members.

															The notion that the President's power to appoint federal judges
to the Commission somehow gives him influence over the Judicial
Branch or prevents, even potentially, the Judicial Branch from
performing its constitutionally assigned functions is fanciful. We
have never considered it incompatible with the functioning of the
Judicial Branch that the President has the power to elevate federal
judges from one level to another or to tempt judges away from the
bench with Executive Branch positions. The mere fact that the
President, within his appointment portfolio, has positions that may
be attractive to federal judges does not, of itself, corrupt the
integrity of the Judiciary. Were the impartiality of the
Judicial Page 488 U. S. 410 Branch so easily subverted, our constitutional system of
tripartite Government would have failed long ago. We simply cannot
imagine that federal judges will comport their actions to the
wishes of the President for the purpose of receiving an appointment
to the Sentencing Commission. [ Footnote 31 ]

															The President's removal power over Commission members poses a
similarly negligible threat to judicial independence. The Act does
not, and could not under the Constitution, authorize the President
to remove, or in any way diminish the status of Article III judges,
as judges. Even if removed from the Commission, a federal judge
appointed to the Commission would continue, absent impeachment, to
enjoy tenure "during good Behaviour" and a full judicial salary.
U.S.Const., Art. III, § l. [ Footnote 32 ] Also, the President's removal power under
the Act is limited. In order to safeguard the independence of the
Commission from executive control, Congress specified in the Act
that the President may remove the Commission members only for good
cause. [ Footnote 33 ]
Such Page 488 U. S. 411 congressional limitation on the President's removal power, like
the removal provisions upheld in Morrison v. Olson, 487 U. S. 654 (1988), and Humphrey's Executor v. United States, 295 U. S. 602 (1935), is specifically crafted to prevent the President from
exercising "coercive influence" over independent agencies. See
Morrison, 487 U.S. at 487 U. S. 688 ; Humphrey's Executor, 295 U.S. at 295 U. S.
630 .

															In other words, since the President has no power to affect the
tenure or compensation of Article III judges, even if the Act
authorized him to remove judges from the Commission at will, he
would have no power to coerce the judges in the exercise of their
judicial duties. [ Footnote
34 ] In any case, Congress did not grant the President
unfettered authority to remove Commission members. Instead,
precisely to ensure that they would not be subject to coercion even
in the exercise of their nonjudicial duties, Congress insulated the
members from Presidential removal except for good cause. Under
these circumstances, we see no risk that the President's limited
removal power will compromise the impartiality of Article III
judges serving on the Commission and, consequently, no risk that
the Act's removal provision will prevent the Judicial Branch from
performing its constitutionally assigned function of fairly
adjudicating cases and controversies. [ Footnote 35 ] Page 488 U. S. 412 V We conclude that, in creating the Sentencing Commission -- an
unusual hybrid in structure and authority -- Congress neither
delegated excessive legislative power nor upset the
constitutionally mandated balance of powers among the coordinate
Branches. The Constitution's structural protections do not prohibit
Congress from delegating to an expert body located within the
Judicial Branch the intricate task of formulating sentencing
guidelines consistent with such significant statutory direction as
is present here. Nor does our system of checked and balanced
authority prohibit Congress from calling upon the accumulated
wisdom and experience of the Judicial Branch in creating policy on
a matter uniquely within the ken of judges. Accordingly, we hold
that the Act is constitutional.

															The judgment of United States District Court for the Western
District of Missouri is affirmed. It is so ordered. Page 488 U. S. 413 * Together with No. 87-1904, United States v.
Mistretta, also on certiorari before judgment to the same
court.

															[ Footnote 1 ]

															Hereinafter, for simplicity in citation, each reference to the
Act is directed to Supplement IV to the 1982 edition of the United
States Code.

															[ Footnote 2 ]

															The District Court's memorandum, written by Judge Howard F.
Sachs, states that his conclusion that "the Guidelines are not
subject to valid challenge" by claims based on the Commission's
lack of constitutional status or on a theory of unconstitutional
delegation of legislative power, 682 F.
Supp. at 1033 -1034, is shared by District Judges Elmo B.
Hunter, D. Brook Bartlett, and Dean Whipple of the Western
District. Id. at 1033, n. 1. Chief District Judge Scott O.
Wright wrote in dissent. Id. at 1035.

															[ Footnote 3 ]

															The corresponding Report in the House of Representatives was
filed a year later. See H.R.Rep. No. 98-1017 (1984). The
House bill (H.R. 6012, 98th Cong., 2d Sess. (1984)) eventually was
set aside in favor of the Senate bill. The House Report however,
reveals that the Senate's rationale underlying sentencing reform
was shared in the House.

															[ Footnote 4 ]

															Until the Parole Commission ceases to exist in 1992, as provided
by §§ 218(a)(5) and 235(a)(1) of the Act, 98 Stat. 2027 and 2031,
the Chairman of that Commission serves as an ex officio nonvoting member of the Sentencing Commission. § 235(b)(5), 98
Stat. 2033.

															[ Footnote 5 ]

															Petitioner's claims were identical to those raised by defendants
in other cases in the Western District of Missouri. Argument on
petitioner's motion was presented to a panel of sentencing judges.
The result is described in n 2, supra. [ Footnote 6 ]

															The disarray is revealed by the District Court decisions cited
in the Petition for Certiorari in No. 87-1904, pp. 9-10, nn. 10 and
11. Since certiorari was granted, a panel of the United States
Court of Appeals for the Ninth Circuit, by a divided vote, has
invalidated the Guidelines on separation of powers grounds, Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (1988), cert. pending sub nom. United States v. Chavez-Sanchez, No. 88-550, and a panel of the Third Circuit (one judge, in
dissent, did not reach the constitutional issue) has upheld them, United States v. Frank, 864 F.2d 992 (1988).

															[ Footnote 7 ]

															In Schechter and Panama Refining , the Court
concluded that Congress had failed to articulate any policy or
standard that would serve to confine the discretion of the
authorities to whom Congress had delegated power. No delegation of
the kind at issue in those cases is present here. The Act does not
make crimes of acts never before criminalized, see Fahey v.
Mallonee, 332 U. S. 245 , 332 U. S. 249 (1947) (analyzing Panama Refining ), or delegate regulatory
power to private individuals, see Yakus v. United States, 321 U. S. 414 , 321 U. S. 424 (1944) (analyzing Schechter ). In recent years, our
application of the nondelegation doctrine principally has been
limited to the interpretation of statutory texts, and, more
particularly, to giving narrow constructions to statutory
delegations that might otherwise be thought to be unconstitutional. See, e.g., Industrial Union Dept. v. American Petroleum
Institute, 448 U. S. 607 , 448 U. S. 646 (1980); National Cable Television Assn. v. United States, 415 U. S. 336 , 415 U. S. 342 (1974).

															[ Footnote 8 ]

															Congress mandated that the guidelines include:

															"(A) a determination whether to impose a sentence to probation,
a fine, or a term of imprisonment;"

															"(B) a determination as to the appropriate amount of a fine or
the appropriate length of a term of probation or a term of
imprisonment;"

															"(C) a determination whether a sentence to a term of
imprisonment should include a requirement that the defendant be
placed on a term of supervised release after imprisonment, and, if
so, the appropriate length of such a term; and"

															"(D) a determination whether multiple sentences to terms of
imprisonment should be ordered to run concurrently or
consecutively."

															28 U.S.C. § 994(a)(1).

															[ Footnote 9 ]

															The Senate Report on the legislation elaborated on the purpose
to be served by each factor. See S.Rep. No. 98-225 (1983).
The Report noted, for example, that the reference to the community
view of the gravity of an offense was "not intended to mean that a
sentence might be enhanced because of public outcry about a single
offense," but

															"to suggest that changed community norms concerning certain
particular criminal behavior might be justification for increasing
or decreasing the recommended penalties for the offense." Id. at 170. The Report, moreover, gave specific
examples of areas in which prevailing sentences might be too
lenient, including the treatment of major white-collar criminals. Id. at 177.

															[ Footnote 10 ]

															Again, the legislative history provides additional guidance for
the Commission's consideration of the statutory factors. For
example, the history indicates Congress' intent that the

															"criminal history . . . factor includes not only the number of
prior criminal acts -- whether or not they resulted in convictions
-- the defendant has engaged in, but their seriousness, their
recentness or remoteness, and their indication whether the
defendant is a 'career criminal' or a manager of a criminal
enterprise." Id. at 174. This legislative history, together with
Congress' directive that the Commission begin its consideration of
the sentencing ranges by ascertaining the average sentence imposed
in each category in the past, and Congress' explicit requirement
that the Commission consult with authorities in the field of
criminal sentencing provide a factual background and statutory
context that give content to the mandate of the Commission. See
American Power & Light Co. v. SEC, 329 U. S.
90 , 329 U. S.
104 -105 (1946).

															[ Footnote 11 ]

															Petitioner argues that the excessive breadth of Congress'
delegation to the Commission is particularly apparent in the
Commission's considering whether to "reinstate" the death penalty
for some or all of those crimes for which capital punishment is
still authorized in the Federal Criminal Code. See Brief
for Petitioner 51-52. Whether, in fact, the Act confers upon the
Commission the power to develop guidelines and procedures to bring
current death penalty provisions into line with decisions of this
Court is a matter of intense debate between the Executive Branch
and some members of Congress, including the Chairman of the Senate
Judiciary Committee. See Gubiensio-Ortiz v. Kanahele, 857
F.2d at 1256. We assume, without deciding, that the Commission was
assigned the power to effectuate the death penalty provisions of
the Criminal Code. That the Commission may have this authority (but
has not exercised it) does not affect our analysis. Congress did
not authorize the Commission to enact a federal death penalty for
any offense. As for every other offense within the Commission's
jurisdiction, the Commission could include the death penalty within
the guidelines only if that punishment was authorized in the first
instance by Congress, and only if such inclusion comported with the
substantial guidance Congress gave the Commission in fulfilling its
assignments. JUSTICE BRENNAN does not join this footnote.

															[ Footnote 12 ]

															Madison admonished: "In republican government the legislative
authority, necessarily, predominates." The Federalist No. 51, p.
350 (J. Cooke ed.1961).

															[ Footnote 13 ]

															If the potential for disruption is present, we then determine
"whether that impact is justified by an overriding need to promote
objectives within the constitutional authority of Congress." Nixon v. Administrator of General Services, 433 U.S. at 433 U. S.
443 .

															[ Footnote 14 ]

															Our recent cases cast no doubt on the continuing vitality of the
view that rulemaking is not a function exclusively committed to the
Executive Branch. Although in INS v. Chadha, 462 U.
S. 919 (1983), we characterized rulemaking as "Executive
action" not governed by the Presentment Clauses, we did so as part
of our effort to distinguish the rulemaking of administrative
agencies from "lawmaking" by Congress which is subject to the
presentment requirements of Article I. Id. at 462 U. S. 953 ,
n. 16. Plainly, this reference to rulemaking as an executive
function was not intended to undermine our recognition in previous
cases and in over 150 years of practice that rulemaking pursuant to
a legislative delegation is not the exclusive prerogative of the
Executive. See, e.g., Buckley v. Valeo, 424 U. S.
1 , 424 U. S. 138 (1976) (distinguishing between Federal Election Commission's
exclusively executive enforcement power and its other powers,
including rulemaking); see also Humphrey's Executor v. United
States, 295 U. S. 602 , 617
[argument of counsel -- not included in electronic version] (1935).
On the contrary, rulemaking power originates in the Legislative
Branch and becomes an executive function only when delegated by the
Legislature to the Executive Branch.

															More generally, it hardly can be argued in this case that
Congress has impaired the functioning of the Executive Branch. In
the field of sentencing, the Executive Branch never has exercised
the kind of authority that Congress has vested in the Commission.
Moreover, since Congress has empowered the President to appoint and
remove Commission members, the President's relationship to the
Commission is functionally no different from what it would have
been had Congress not located the Commission in the Judicial
Branch. Indeed, since the Act grants ex officio membership
on the Commission to the Attorney General or his designee, 28
U.S.C. § 991(a), the Executive Branch's involvement in the
Commission is greater than in other independent agencies, such as
the Securities and Exchange Commission, not located in the Judicial
Branch.

															[ Footnote 15 ]

															The Judicial Conference of the United States is charged with
"promot[ing] uniformity of management procedures and the
expeditious conduct of court business," in part by "a continuous
study of the operation and effect of the general rules of practice
and procedure," and recommending changes

															"to promote simplicity in procedure, fairness in administration,
the just determination of litigation, and the elimination of
unjustifiable expense and delay."

															28 U.S.C. § 331 (1982 ed. and Supp. IV). Similarly, the
Administrative Office of the United States Courts handles the
administrative and personnel matters of the courts, matters
essential to the effective and efficient operation of the judicial
system. § 604 (1982 ed. and Supp. IV). Congress also has
established the Federal Judicial Center, which studies improvements
in judicial administration. §§ 620-628 (1982 ed. and Supp. IV).

															[ Footnote 16 ]

															We also have upheld Congress' power under the Appointments
Clause to vest appointment power in the Judicial Branch, concluding
that the power of appointment, though not judicial, was not
"inconsistent as a functional matter with the Court's exercise of
their Article III powers." Morrison v. Olson, 487 U.
S. 654 , 487 U. S. 679 ,
n. 16 (1988). See also Ex parte Siebold, 100 U.
S. 371 (1880) (appointment power not incongruous to
Judiciary). In Morrison, we noted that Article III courts
perform a variety of functions not necessarily or directly
connected to adversarial proceedings in a trial or appellate court.
Federal courts supervise grand juries and compel the testimony of
witnesses before those juries, see Brown v. United States, 359 U. S. 41 , 359 U. S. 49 (1959), participate in the issuance of search warrants, see Fed.Rule Crim.Proc. 41, and review wiretap
applications, see 18 U.S.C. §§ 2516, 2518 (1982 ed. and
Supp. IV). In the interest of effectuating their judgments, federal
courts also possess inherent authority to initiate a contempt
proceeding and to appoint a private attorney to prosecute the
contempt. Young v. United States ex rel. Vuitton et Fils
S.A., 481 U. S. 787 (1987). See also In re Certain Complaints Under
Investigation, 783 F.2d 1488, 1505 (CA11) (upholding statute
authorizing judicial council to investigate improper conduct by
federal judge), cert. denied sub nom. Hastings v. Godbold, 477 U.S. 904 (1986).

															[ Footnote 17 ]

															Indeed, had Congress decided to confer responsibility for
promulgating sentencing guidelines on the Executive Branch, we
might face the constitutional questions whether Congress
unconstitutionally had assigned judicial responsibilities to the
Executive or unconstitutionally had united the power to prosecute
and the power to sentence within one Branch. Ronald L. Gainer,
Acting Deputy Assistant Attorney General, Department of Justice,
testified before the Senate to this very effect:

															"If guidelines were to be promulgated by an agency outside the
judicial branch, it might be viewed as an encroachment on a
judicial function. . . ."

															Reform of the Federal Criminal Laws, Hearing on S. 1437 et
al. before the Subcommittee on Criminal Laws and Procedures of
the Senate Committee on the Judiciary, 95th Cong., 1st Sess., pt.
13, p. 9005 (1977).

															[ Footnote 18 ]

															Under its mandate, the Commission must make judgments about the
relative importance of such considerations as the "circumstances
under which the offense was committed," the "community view of the
gravity of the offense," and the "deterrent effect a particular
sentence may have on the commission of the offense by others." 28
U.S.C. § 994(c)(2), (4), (6).

															[ Footnote 19 ]

															Rule 23 of the Federal Rules of Civil Procedure, for example,
has inspired a controversy over the philosophical, social, and
economic merits and demerits of class actions. See Miller,
Of Frankenstein Monsters and Shining Knights: Myth, Reality, and
the "Class Action Problem," 92 Harv.L.Rev. 664 (1979).

															[ Footnote 20 ]

															We express no opinion about whether, under the principles of
separation of powers, Congress may confer on a court rulemaking
authority such as that exercised by the Sentencing Commission. Our
precedents and customs draw no clear distinction between
nonadjudicatory activity that may be undertaken by auxiliary bodies
within the Judicial Branch, but not by courts. We note, however,
that the constitutional calculus is different for considering
nonadjudicatory activities performed by bodies that exercise
judicial power and enjoy the constitutionally mandated autonomy of
courts from what it is for considering the nonadjudicatory
activities of independent nonadjudicatory agencies that Congress
merely has located within the Judicial Branch pursuant to its
powers under the Necessary and Proper Clause. We make no attempt
here to define the nonadjudicatory duties that are appropriate for
auxiliary bodies within the Judicial Branch, but not for courts.
Nonetheless, it is clear to us that an independent agency located
within the Judicial Branch may undertake without constitutional
consequences policy judgments pursuant to a legitimate
congressional delegation of authority that, if undertaken by a
court, might be incongruous to or destructive of the central
adjudicatory mission of the Branch. See United States v.
Ferreira , 13 How. 40 (1852). In this sense, the
issue we face here is different from the issue we faced in Morrison v. Olson, 487 U. S. 654 (1988), where we considered the constitutionality of the
nonadjudicatory functions assigned to the "Special Division" court
created by the Ethics in Government Act of 1978, 28 U.S.C. §§ 49,
591 et seq. (1982 ed. and Supp. IV) or the issue we faced
in Hayburn's Case , 2 Dall. 409 (1792), and in Ferreira, in which Article III
courts were asked to render judgments that were reviewable by an
executive officer.

															[ Footnote 21 ]

															One such prohibition appeared in the New Jersey Plan's judiciary
provision, see 1 M. Farrand, The Records of the Federal
Convention of 1787, p. 244 (1911); the other, proposed by Charles
Pinckney, a delegate from South Carolina, was not reported out of
the Committee on Detail to which he submitted it, see 2 id. at 341-342. See also Wheeler, Extrajudicial
Activities of the Early Supreme Court, 1973 S.Ct.Rev. 123.
Concededly, it is also true that the delegates at the Convention
rejected two proposals that would have institutionalized
extrajudicial service. Despite support from Madison, the Framers
rejected a proposed "Council of Revision," comprised of, among
others, a "convenient number of the National Judiciary," 1 Farrand, supra, at 21, that would have exercised veto power over
proposed legislation. Similarly, the Framers rejected a proposed
Council of State, of which the Chief Justice was to be a member,
that would have acted as advisor to the President in a fashion
similar to the modern cabinet. See Lerner, The Supreme
Court as Republican Schoolmaster, 1967 S.Ct.Rev. 127, 174-177. At
least one commentator has observed that a number of the opponents
of the Council of Revision and the Council of State believed that
judges individually could assume extrajudicial service. Wheeler, supra, at 127-130. We do not pretend to discern a clear
intent on the part of the Framers with respect to this issue, but
glean from the Constitution and the events at the Convention simply
an inference that the Framers did not intend to forbid judges from
holding extrajudicial positions. See United States v.
Nixon, 418 U. S. 683 , 418 U. S.
705 -706, n. 16 (1974).

															[ Footnote 22 ]

															It would be naive history, however, to suggest that the Framers,
including the Justices who accepted extrajudicial service, were of
one mind on the issue, or believed that such service was in all
cases appropriate and constitutional. Chief Justice Jay, in draft
correspondence to President Washington, explained that he was "far
from thinking it illegal or unconstitutional" for the Executive to
use individual judges for extrajudicial service, so long as the
extrajudicial service was "consistent and compatible" with "the
judicial function." Draft of a letter by Jay, intended for
President Washington, enclosed with a letter dated September 15,
1790, from Jay to Justice Iredell, reproduced in 2 G. McRee, Life
and Correspondence of James Iredell 293, 294 (1949). Chief Justice
Marshall stepped down from his post as Secretary of State when
appointed to the bench, agreeing to stay on only until a
replacement could be found. Chief Justice Ellsworth accepted his
posting to France with reluctance, and his appointment was
unsuccessfully opposed on constitutional grounds by Jefferson,
Madison, and Pinckney. But that some judges have turned down
extrajudicial service or have expressed reservations about the
practice, see Mason, Extra-Judicial Work for Judges: The
Views of Chief Justice Stone, 67 Harv.L.Rev.193 (1953), does not
detract from the fact that judges have continued to assume
extrajudicial duties, and efforts to curb the practice as contrary
to the letter or spirit of the Constitution have not succeeded. But see Note, The Constitutional Infirmities of the United
States Sentencing Commission, 96 Yale L.J. 1363, 1381-1385
(1987).

															[ Footnote 23 ]

															Compendia of extrajudicial activities may be found in several
sources. See Mason, supra; McKay, The Judiciary
and Nonjudicial Activities, 35 Law & Contemp. Prob. 9 (1970);
Slonim, Extrajudicial Activities and the Principle of the
Separation of Powers, 49 Conn.B.J. 391 (1975). See also In re
President's Comm'n on Organized Crime, 783 F.2d 370 (CA3
1986).

															[ Footnote 24 ]

															Article III judges, and the Chief Justice in particular, also
have served and continue to serve on numerous cultural commissions.
The Chief Justice, by statute, is a member of the Board of Regents
of the Smithsonian Institution, Rev.Stat. § 5580, as
amended, 20 U.S.C. § 42, and a trustee of the National Gallery
of Art, 50 Stat. 52, 20 U.S.C. § 72(a). Four Justices, pursuant to
44 U.S.C. § 2501, have served successively as the judiciary member
of the National Historical Publications and Records Commission. And
Chief Justice Burger began his service as Chairman of the
Commission on the Bicentennial of the United States Constitution
before he assumed retirement status. See Pub.L. 98-101, 97
Stat. 719.

															[ Footnote 25 ]

															For example, Judges A. Leon Higginbotham, Jr., James B. Parsons,
Luther W. Youngdahl, George C. Edwards, Jr., James M. Carter, and
Thomas J. MacBride, and others, have served on various Presidential
and national commissions. See Brief for United States 48,
n. 40.

															[ Footnote 26 ]

															Extrajudicial activity has been the subject of extensive
testimony in Congress from federal judges, academics, legislators,
and members of the legal community. See Nonjudicial
Activities of Supreme Court Justices and other Federal Judges,
Hearings before the Subcommittee on Separation of Powers of the
Senate Committee on the Judiciary, 91st Cong., 1st Sess. (1969).
Although many participants were critical of extrajudicial service,
the testimony shed little light on what types of service were not
merely unwise, but unconstitutional.

															Perhaps the most interesting lament on the subject comes from
Chief Justice Warren, reflecting on his initial refusal to
participate in the Commission looking into President Kennedy's
death:

															"First, it is not in the spirit of constitutional separation of
powers to have a member of the Supreme Court serve on a
presidential commission; second, it would distract a Justice from
the work of the Court, which had a heavy docket; and, third, it was
impossible to foresee what litigation such a commission might
spawn, with resulting disqualification of the Justice from sitting
in such cases. I then told them that, historically, the acceptance
of diplomatic posts by Chief Justices Jay and Ellsworth had not
contributed to the welfare of the Court, that the service of five
Justices on the Hayes-Tilden Commission had demeaned it, that the
appointment of Justice Roberts as chairman to investigate the Pearl
Harbor disaster had served no good purpose, and that the action of
Justice Robert Jackson in leaving Court for a year to become chief
prosecutor at Nurnberg after World War II had resulted in
divisiveness and internal bitterness on the Court."

															E. Warren, The Memoirs of Earl Warren 356 (1977). Despite his
initial reservations, the Chief Justice served as Chairman of the
Commission, and endured criticism for so doing.

															[ Footnote 27 ]

															The effect of extrajudicial service on the functioning of the
Judicial Branch is not solely a constitutional concern. The Code of
Conduct for United States Judges, approved by the Judicial
Conference of the United States, is intended to ensure that a judge
does not accept extrajudicial service incompatible with the
performance of judicial duties or that might compromise the
integrity of the Branch as a whole. Canon 5(G) provides:

															"A judge should not accept appointment to a governmental
committee, commission, or other position that is concerned with
issues of fact or policy on matters other than the improvement of
the law, the legal system, or the administration of justice, unless
appointment of a judge is required by Act of Congress. A judge
should not, in any event, accept such an appointment if the judge's
governmental duties would interfere with the performance of
judicial duties or tend to undermine the public confidence in the
integrity, impartiality, or independence of the judiciary. . .
."

															Administrative Office of U.S. Courts, Code of Judicial Conduct
for United States Judges (1987).

															[ Footnote 28 ]

															Certainly nothing in the Act creates any coercive power over
members of the Judicial Branch, and we construe the statute as
affording none.

															"[I]t is the duty of federal courts to construe a statute in
order to save it from constitutional infirmities, see, e.g.,
Commodities Futures Trading Comm'n v. Schor, 478 U. S.
833 , 478 U. S. 841 (1986)." Morrison v. Olson, 487 U.S. at 487 U. S.
682 .

															[ Footnote 29 ]

															Notably, the statutory provision creating the Judicial Councils
of the Circuits that we found constitutionally unobjectionable in Chandler requires the Chief Judge of each Court of Appeals
to preside over his Circuit's Judicial Council. 28 U.S.C. § 332.
The statutory provision creating the Judicial Conference of the
United States also requires the service of the Chief Judge of each
Court of Appeals. 28 U.S.C. § 331 (1982 ed. and Supp. IV). Thus, we
have given at least tacit approval to this degree of
congressionally mandated judicial service on nonadjudicatory
bodies.

															[ Footnote 30 ]

															Petitioner does not raise the issue central to our most recent
opinions discussing removal power, namely, whether Congress
unconstitutionally has limited the President's authority to remove
officials engaged in executive functions or has reserved for itself
excessive removal power over such officials. See Morrison v.
Olson, 487 U. S. 654 (1988); Bowsher v. Synar, 478 U.
S. 714 (1986).

															[ Footnote 31 ]

															Moreover, as has been noted, the Act limits the President's
power to use his appointments to the Commission for political
purposes by explicitly requiring that he consider a list of six
judges submitted by the Judicial Conference before making his
selections. Senator Hart explained that this provision provided
"greater assurance that a broad range of interests will be
represented." 124 Cong.Rec. 378 (1978).

															[ Footnote 32 ]

															The textual requirements of Article III that judges shall enjoy
tenure and be paid an irreducible compensation

															"were incorporated into the Constitution to ensure the
independence of the Judiciary from control of the Executive and
Legislative Branches of government." Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U. S. 50 , 458 U. S. 59 (1982). These inviolable guarantees are untrammeled by the Act.
Concededly, since Commission members receive a salary equal to that
of a court of appeals judge, 28 U.S.C. § 992(c), district court
judges appointed to the Commission receive an increase in salary.
We do not address the hypothetical constitutional question whether,
under the Compensation Clause of Article III, a district judge
removed from the Commission must continue to be paid the higher
salary.

															[ Footnote 33 ]

															This removal provision is precisely the kind that was at issue
in Humphrey's Executor v. United States, where we
wrote:

															"The authority of Congress, in creating quasi-legislative or
quasi-judicial agencies, to require them to act in discharge of
their duties independently of executive control cannot well be
doubted; and that authority includes, as an appropriate incident,
power to fix the period during which [commissioners] shall continue
in office, and to forbid their removal except for cause in the
meantime."

															295 U.S. at 295 U. S.
629 .

															[ Footnote 34 ]

															Although removal from the Sentencing Commission conceivably
could involve some embarrassment or even damage to reputation, each
judge made potentially subject to these injuries will have
undertaken the risk voluntarily by accepting the President's
appointment to serve.

															[ Footnote 35 ] Bowsher v. Synar, 478 U. S. 714 (1986), is not to the contrary. In Bowsher, we held that
"Congress cannot reserve for itself the power of removal of an
officer charged with the execution of the laws except by
impeachment." Id. at 478 U. S. 726 .
To permit Congress to remove an officer performing executive
functions whenever Congress might find the performance of his
duties unsatisfactory would, in essence, give Congress veto power
over executive action. In light of the special danger recognized by
the Founders of congressional usurpation of Executive Branch
functions, "[t]his kind of congressional control over the execution
of the laws . . . is constitutionally impermissible." Id. at 478 U. S.
726 -727.

															Nothing in Bowsher, however, suggests that one Branch
may never exercise removal power, however limited, over members of
another Branch. Indeed, we already have recognized that the
President may remove a judge who serves on an Article I court. McAllister v. United States, 141 U.
S. 174 , 141 U. S. 185 (1891). In any event, we hold here no more than that Congress may
vest in the President the power to remove for good cause an Article
III judge from a nonadjudicatory independent agency placed within
the Judicial Branch. Because an Article III judge serving on a
nonadjudicatory commission is not exercising judicial power, and
because such limited removal power gives the President no control
over judicatory functions, interbranch removal authority under
these limited circumstances poses no threat to the balance of power
among the Branches. Our paramount concern in Bowsher that
Congress was accreting to itself the power to control the functions
of another Branch is not implicated by a removal provision, like
the one at issue here, which provides no control in one Branch over
the constitutionally assigned mission of another Branch.

															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.

															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. [ Footnote 2/1 ]
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) (kidnapping), 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, Page 488 U. S. 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 Page 488 U. S. 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 Page 488 U. S. 416 States, 276 U. S. 394 , 276 U. S. 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 , 319 U. S.
216 -217 (1943); New York Central Securities Corp. v.
United States, 287 U. S. 12 , 287 U. S. 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.

															Precisely because the scope of delegation is largely
uncontrollable by the courts, we must be particularly rigorous
in Page 488 U. S. 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 , 312 U. S. 22 (1941), or to prescribe by rule the manner in which their officers
shall execute their judgments, Wayman v.
Southard , 10 Wheat. 1, 23 U. S. 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 , 289 U. S. 285 (1933). [ Footnote 2/2 ] Or, to take
examples closer to the case before us: Trial judges could be given
the power to determine Page 488 U. S. 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 143 U. S.
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.'"

															143 U.S. at 143 U. S. 694 (emphasis added), quoting Moers v. Reading, 21 Pa. 188,
202 (1853). In United States v. Grimaud, 220 U.
S. 506 , 220 U. S. 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: Page 488 U. S. 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 276 U. S.
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 legislative Page 488 U. S. 420 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 143 U. S. 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 , 295 U. S. 628 (1935). And the Commission's Page 488 U. S. 421 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 Page 488 U. S. 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, "now-in" 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. III 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 488 U. S. 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 488 U. S. 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 Page 488 U. S. 423 divide up the Government any way it wishes, and employ whatever
terminology it desires, for nonconstitutional 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 , 478 U. S.
727 -732 (1986). In Humphrey's Executor v. United
States, supra, 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 295 U.S. at 295 U. S. 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. III, § 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, Page 488 U. S. 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 487 U. S.
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 488 U. S. 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 Page 488 U. S. 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 , 447 U. S. 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. [ Footnote
2/3 ]

															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 procedure Page 488 U. S. 426 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 488 U. S.
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 Page 488 U. S. 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.

															[ Footnote 2/1 ]

															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).

															[ Footnote 2/2 ]

															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.

															[ Footnote 2/3 ]

															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.