(Pix (c) Larry Catá Backer 2014)
Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
Grounded in the principles of the sociology of law,
the course has morphed into an effort to introduce students to law as a
self-referencing system with its own particular structures, premises,
constraints and language, with its own logic and taboos and its own
means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice,
Chichester : John Wiley and Sons Ltd, 1999) is then a critical element
in the way in which the legal system (in this case of the United States)
interacts with the world, both as a legal and as a
socio-economic-political actor. The course has also expanded from its
original narrow and technical focus, to a broader focus on principles
and the use of language and logic to build and operate a system of law.
That broadening has made it possible to offer the course not just to
first year law students, but also to graduate students in the social
sciences and in international affairs, as a grounding in the legal
systems that are important in their respective fields.
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 13 (The Administrative Branches: The Non-Delegation Doctrine, An Introduction).
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 13 (The Administrative Branches: The Non-Delegation Doctrine, An Introduction).
Chapter 13The Administrative Branches: The Non-Delegation Doctrine, An IntroductionI. Introduction.We have been considering the way that law is used to constrain the use of political power by the state. We have come to understand that the simple division of authority between a legislative, executive and judicial branch is not sufficient to provide guidance for its use in the day to day activities of government. Rather than leave the adjust of these extent of these authorities to the process of politics, the United States legal system uses law to frame the constraints within which political contests for authority within a government of divided powers may be determined. We have seen an example of this legalization of politics in the means used to determine the permissible extent of executive power.By the 21st century, though, the traditional division of the American federal government no longer accurately described the functional operation of the general government. To get a clearer picture, it is necessary to examine the role of the administrative architecture of U.S. government. That is the purpose of this chapter. To understand the way the constraints on the exercise of administrative agency authority is also legalized, and policed by the judiciary requires an introduction to the non-delegation doctrine, the bundle of premises through which the three branch formal organization of the General Government can accommodate, at least functionally, an additional branch, and to manage that relationship without breaching the formal constraints of federal constitutional organization. The notion of the delegation of legislative power requires an assessment of the character of legislation and the differences between that and promulgating regulations. It also requires a consideration of the extent to which the coordinate branches of government might be required to receive quasi-legislative obligations delegated by Congress.II. Chapter Readings· Mistretta v. U.S., 488 U.S. 361 (1988)· Peter Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum.L.Rev. 573 (1984) READ INTRO and PART I__________Mistretta v. U.S.488 U.S. 361 (1988)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). The United States District Court for the Western District of Missouri ruled that the Guidelines were constitutional. United States v. Johnson, 682 F.Supp. 1033 (W.D.Mo.1988).I.BackgroundFor 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 he should be fined and how much, and whether some lesser 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, 363, 58 S.Ct. 872, 874, 82 L.Ed. 1399 (1938).* * *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, 18 U.S. (5 Wheat.) 76, 5 L.Ed. 37 (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, 37 S.Ct. 72, 61 L.Ed. 129 (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, 45-46, 98 S.Ct. 2610, 2613-14, 57 L.Ed.2d 582 (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 to release a prisoner before the expiration of the sentence imposed by the judge. * * *. . . . 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.* * *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.BThe ActThe 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 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).CThe Sentencing CommissionThe 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, a voting member serves for six years and may not serve more than two full terms. §§ 992(a) and (b).[2]DThe Responsibilities of the CommissionIn 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).* * * * *.IIThis LitigationOn 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. * * * *IIIDelegation of PowerPetitioner 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 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, 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 co-ordination." J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 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 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, 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, 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, 421 (1935). Accordingly, this Court has deemed it "constitutionally sufficient if Congress clearly 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, 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. See, e. g., Lichter v. United States, 334 U.S. 742, 785-786 (1948) (upholding delegation of authority to determine excessive profits); American Power & Light Co. v. SEC, 329 U.S., at 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, 426 (1944) (upholding delegation to Price Administrator to fix commodity prices that would be fair and equitable, and would effectuate purposes of Emergency Price Control Act of 1942); FPC v. Hope Natural Gas Co., 320 U.S. 591, 600 (1944) (upholding delegation to Federal Power Commission to determine just and reasonable rates); National Broadcasting Co. v. United States, 319 U.S. 190, 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). Congress instructed the 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).* * * *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 types of criminals are to be considered similar for the purposes of sentencing.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 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 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 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).* * * * *IVSeparation of PowersHaving 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.* * * *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, 629 (1935), the Framers did not require -- and indeed rejected -- the notion that the three Branches must be entirely separate and distinct. * * * * * 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, 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 among the Branches, but in a carefully crafted system of checked and balanced power within each Branch. * * * * *"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 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.ALocation of the CommissionThe 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 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.* * * * *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. * * * * *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. * * * * *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.* * * * *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. * * * * * 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 the Judiciary always has played, and continues to play, in sentencing.* * * * * *In sum, since substantive judgment in the field of sentencing has been and remains appropriate to the Judicial Branch, and the methodology of rulemaking has been and remains appropriate to that Branch, Congress' considered decision to combine these functions in an independent Sentencing Commission and to locate that Commission within the Judicial Branch does not violate the principle of separation of powers.VWe 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 judgment of United States District Court for the Western District of Missouri is affirmed.It is so ordered.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.* * * * *__________WHITMAN v. AMERICAN TRUCKING ASSOCIATIONS, INC., et al.531 U.S. 457 (2001)SCALIA, J., delivered the opinion of the Court, Parts I and IV of which were unanimous, Part II of which was joined by REHNQUIST, C. J., and STEVENS, O’CONNOR, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., and Part III of which was joined by REHNQUIST, C. J., and O’CONNOR, KENNEDY, THOMAS, GINSBURG, and BREYER, JJ. THOMAS, J., filed a concurring opinion, post, p. 486. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which SOUTER, J., joined, post, p. 487. BREYER, J., filed an opinion concurring in part and concurring in the judgment, post, p. 490.JUSTICE SCALIA delivered the opinion of the Court.These cases present the following questions: (1) Whether § 109(b)(1) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the Environmental Protection Agency (EP A). (2) Whether the Administrator may consider the costs of implementation in setting national ambient air quality standards (NAAQS) under § 109(b)(1). (3) Whether the Court of Appeals had jurisdiction to review the EP A’s interpretation of Part D of Title I of the CAA, 42 U. S. C. §§ 7501-7515, with respect to implementing the revised ozone NAAQS. (4) If so, whether the EPA’s interpretation of that part was permissible.ISection 109(a) of the CAA, as added, 84 Stat. 1679, and amended, 42 U. S. C. § 7409(a), requires the Administrator of the EPA to promulgate NAAQS for each air pollutant for which “air quality criteria” have been issued under § 108, 42 U. S. C. § 7408. Once a NAAQS has been promulgated, the Administrator must review the standard (and the criteriaon which it is based) “at five-year intervals” and make “such revisions ... as may be appropriate.” CAA § 109(d)(1), 42 U. S. C. § 7409(d)(1). These cases arose when, on July 18, 1997, the Administrator revised the NAAQS for particulate matter and ozone. See NAAQS for Particulate Matter, 62 Fed. Reg. 38652 (codified in 40 CFR § 50.7 (1999)); NAAQS for Ozone, id., at 38856 (codified in 40 CFR §§ 50.9, 50.10 (1999)). American Trucking Associations, Inc., and its correspondents in No. 99-1257―which include, in addition to other private companies, the States of Michigan, Ohio, and West Virginia―challenged the new standards in the Court of Appeals for the District of Columbia Circuit, pursuant to 42 U. S. C. § 7607(b)(1).The District of Columbia Circuit accepted some of the challenges and rejected others. It agreed with the No. 991257 respondents (hereinafter respondents) that § 109(b)(1) delegated legislative power to the Administrator in contravention of the United States Constitution, Art. I, § 1, because it found that the EP A had interpreted the statute to provide no “intelligible principle” to guide the agency’s exercise of authority. American Trucking Assns., Inc. v. EPA, 175 F.3d 1027, 1034 (1999). The court thought, however, that the EPA could perhaps avoid the unconstitutional delegation by adopting a restrictive construction of § 109(b)(1), so instead of declaring the section unconstitutional the court remanded the NAAQS to the agency. Id., at 1038. (On this delegation point, Judge Tatel dissented, finding the statute constitutional as written. Id., at 1057.) On the second issue that the Court of Appeals addressed, it unanimously rejected respondents’ argument that the court should depart from the rule of Lead Industries Assn., Inc. v. EPA, 647 F.2d 1130, 1148 (CADC 1980), that the EPA may not consider the cost of implementing a NAAQS in setting the initial standard. It also rejected respondents’ argument that the implementation provisions for ozone found in Part D, Subpart 2, of Title I of the CAA, 42 U. S. C. §§ 7511-751lf, were so tied to the existing ozone standard that the EPA lacked the power to revise the standard. The court held that although Subpart 2 constrained the agency’s method of implementing the new standard, 175 F. 3d, at 1050, it did not prevent the EPA from revising the standard and designating areas of the country as “nonattainment areas,” see 42 U. S. C. § 7407(d)(1), by reference to it, 175 F. 3d, at 1047-1048. On the EPA’s petition for rehearing, the panel adhered to its position on these points, and unanimously rejected the EPA’s new argument that the court lacked jurisdiction to reach the implementation question because there had been no “final” implementation action. American Trucking Assns., Inc. v. EPA, 195 F.3d 4 (CADC 1999). The Court of Appeals denied the EP A’s suggestion for rehearing en bane, with five judges dissenting. Id., at 13.The Administrator and the EP A petitioned this Court for review of the first, third, and fourth questions described in the first paragraph of this opinion. Respondents conditionally cross-petitioned for review of the second question. We granted certiorari on both petitions, 529 U. S. 1129 (2000); 530 U.S. 1202 (2000), and scheduled the cases for argument in tandem. We have now consolidated the cases for purposes of decision.IIIn Lead Industries Assn., Inc. v. EPA, supra, at 1148, the District of Columbia Circuit held that “economic considerations [may] play no part in the promulgation of ambient air quality standards under Section 109” of the CAA. In the present cases, the court adhered to that holding, 175 F. 3d, at 1040-1041, as it had done on many other occasions. See, e. g., American Lung Assn. v. EPA, 134 F.3d 388,389 (1998); NRDC v. Administrator, EPA, 902 F.2d 962, 973 (1990), vacated in part on other grounds, NRDC v. EPA, 921 F.2d 326 (CADC 1991); American Petroleum Institute v. Costle, 665 F.2d 1176, 1185 (1981). Respondents argue that these decisions are incorrect. We disagree; and since the first step in assessing whether a statute delegates legislative power is to determine what authority the statute confers, we address that issue of interpretation first and reach respondents’ constitutional arguments in Part III, infra.Section 109(b)(1) instructs the EPA to set primary ambient air quality standards “the attainment and maintenance of which ... are requisite to protect the public health” with “an adequate margin of safety.” 42 U. S. C. § 7409(b)(1). Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards. The language, as one scholar has noted, “is absolute.” D. Currie, Air Pollution:Federal Law and Analysis 4-15 (1981). The EPA, “based on” the information about health effects contained in the technical “criteria” documents compiled under § 108(a)(2), 42 U. S. C. § 7408(a)(2), is to identify the maximum airborne concentration of a pollutant that the public health can tolerate, decrease the concentration to provide an “adequate” margin of safety, and set the standard at that level. Nowhere are the costs of achieving such a standard made part of that initial calculation.Against this most natural of readings, respondents make a lengthy, spirited, but ultimately unsuccessful attack. They begin with the object of § 109(b)(1)’s focus, the “public health.” When the term first appeared in federal clean air legislation―in the Act of July 14, 1955 (1955 Act), 69 Stat. 322, which expressed “recognition of the dangers to the public health” from air pollution―its ordinary meaning was “[t]he health of the community.” Webster’s New International Dictionary 2005 (2d ed. 1950). Respondents argue, however, that § 109(b)(1), as added by the Clean Air Amendments of 1970, 84 Stat. 1676, meant to use the term’s secondary meaning: “[t]he ways and means of conserving the healthof the members of a community, as by preventive medicine, organized care of the sick, etc.”Ibid. Words that can have more than one meaning are given content, however, by their surroundings, FDA v. Brown &Williamson Tobacco Corp., 529 U. S. 120, 132-133 (2000); Jones v. United States, 527 U. S. 373, 389 (1999), and in the context of § 109(b)(1) this second definition makes no sense. Congress could not have meant to instruct the Administrator to set NAAQS at a level “requisite to protect”“the art and science dealing with the protection and improvement of community health.” Webster’s Third New International Dictionary 1836 (1981). We therefore revert to the primary definition of the term: the health of the public.Even so, respondents argue, many more factors than air pollution affect public health. In particular, the economic cost of implementing a very stringent standard might produce health losses sufficient to offset the health gains achieved in cleaning the air―for example, by closing down whole industries and thereby impoverishing the workers and consumers dependent upon those industries. That is unquestionably true, and Congress was unquestionably aware of it. Thus, Congress had commissioned in the Air Quality Act of 1967 (1967 Act) “a detailed estimate of the cost of carrying out the provisions of this Act; a comprehensive study of the cost of program implementation by affected units of government; and a comprehensive study of the economic impact of air quality standards on the Nation’s industries, communities, and other contributing sources of pollution.” § 2, 81 Stat. 505. The 1970 Congress, armed with the results of this study, see The Cost of Clean Air, S. Doc. No. 91-40 (1969) (publishing the results of the study), not only anticipated that compliance costs could injure the public health, but provided for that precise exigency. Section 110(f)(1) of the CAA permitted the Administrator to waive the compliance deadline for stationary sources if, interalia, sufficient control measures were simply unavailable and “the continued operation of such sources is essential ... to the public health or welfare.” 84 Stat. 1683 (emphasis added). Other provisions explicitly permitted or required economic costs to be taken into account in implementing the air quality standards. Section 111(b)(1)(B), for example, commanded the Administrator to set “standards of performance” for certain new sources of emissions that as specified in § 111(a)(1) were to “reflec[t] the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated.” Section 202(a)(2) prescribed that emissions standards for automobiles could take effect only “after such period as the Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period.” 84 Stat. 1690. See also § 202(b)(5)(C) (similar limitation for interim standards); § 211(c)(2) (similar limitation for fuel additives); § 231(b) (similar limitation for implementation of aircraft emission standards). Subsequent amendments to the CAA have added many more provisions directing, in explicit language, that the Administrator consider costs in performing various duties. See, e. g., 42 U. S. C. § 7545(k)(1) (reformulate gasoline to “require the greatest reduction in emissions ... taking into consideration the cost of achieving such emissions reductions”); § 7547(a)(3) (emission reduction for nonroad vehicles to be set “giving appropriate consideration to the cost” of the standards). We have therefore refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted. See Union Elec. Co. v. EPA, 427 U. S. 246, 257, and n. 5 (1976). Cf. General Motors Corp. v. United States, 496 U. S. 530, 538, 541 (1990)(refusing to infer in certain provisions of the CAA deadlines and enforcement limitations that had been expressly imposed elsewhere).Accordingly, to prevail in their present challenge, respondents must show a textual commitment of authority to the EPA to consider costs in setting NAAQS under § 109(b)(1). And because § 109(b)(1) and the NAAQS for which it provides are the engine that drives nearly all of Title I of the CAA, 42 U. S. C. §§ 7401-7515, that textual commitment must be a clear one. Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions―it does not, one might say, hide elephants in mouseholes. See MC! Telecommunications Corp. v. American Telephone &Telegraph Co., 512 U. S. 218, 231 (1994); FDA v. Brown &Williamson Tobacco Corp., supra, at 159-160. Respondents’ textual arguments ultimately founder upon this principle.Their first claim is that § 109(b)(1)’s terms “adequate margin” and “requisite” leave room to pad health effects with cost concerns. Just as we found it “highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate regulated to agency discretion―and even more unlikely that it would achieve that through such a subtle device as permission to ‘modify’ rate-filing requirements,” MC! Telecommunications Corp. v. American Telephone &Telegraph Co., supra, at 231, so also we find it implausible that Congress would give to the EPA through these modest words the power to determine whether implementation costs should moderate national air quality standards. Accord, Christensen v. Harris County, 529 U. S. 576, 590, n. (2000) (SCALIA, J., concurring in part and concurring in judgment) (“The implausibility of Congress’s leaving a highly significant issue unaddressed (and thus ‘delegating’ its resolution to the administering agency) is assuredly one of the factors to be considered in determining whether there is ambiguity” (emphasis deleted)).[3]The same defect inheres in respondents’ next two arguments: that while the Administrator’s judgment about what is requisite to protect the public health must be “based on [the] criteria” documents developed under § 108(a)(2), see § 109(b)(1), it need not be based solely on those criteria; and that those criteria themselves, while they must include “effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air,” are not necessarily limited to those effects. Even if we were to concede those premises, we still would not conclude that one of the unenumerated factors that the agency can consider in developing and applying the criteria is cost of implementation. That factor is both so indirectly related to public health and so full of potential for canceling the conclusions drawn from direct health effects that it would surely have been expressly mentioned in §§ 108 and 109 had Congress meant it to be considered. Yet while those provisions describe in detail how the health effects of pollutants in the ambient air are to be calculated and given effect, see § 108(a)(2), they say not a word about costs.Respondents point, finally, to a number of provisions in the CAA that do require attainment cost data to be generated. Section 108(b)(1), for example, instructs the Administrator to “issue to the States,” simultaneously with the criteria documents, “information on air pollution control techniques, which information shall include data relating to the cost of installation and operation.” 42 U. S. C. § 7408(b)(l). And § 109(d)(2)(C)(iv) requires the Clean Air Scientific Advisory Committee to “advise the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance” of NAAQS.[4] 42 U. S. C. § 7409(d)(2)(C)(iv). Respondents argue that these provisions make no sense unless costs are to be considered in setting the NAAQS. That is not so. These provisions enable the Administrator to assist the States in carrying out their statutory role as primary implementers of the NAAQS. It is to the States that the CAA assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources. See 42 U. S. C. §§ 7407(a), 7410 (giving States the duty of developing implementation plans). It would be impossible to perform that task intelligently without considering which abatement technologies are most efficient, and most economically feasible―which is why we have said that “the most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan,”Union Elec. Co. v. EPA, 427 U. S., at 266. Thus, federal clean air legislation has, from the very beginning, directed federal agencies to develop and transmit implementation data, including cost data, to the States. See 1955 Act, § 2(b), 69 Stat. 322; Clean Air Act of 1963, amending §§ 3(a), (b) of the CAA, 77 Stat. 394; 1967 Act, §§ 103(a)-(d), 104, 107(c), 81 Stat. 486-488. That Congress chose to carry forward this research program to assist States in choosing the means through which they would implement the standards is perfectly sensible, and has no bearing upon whether cost considerations are to be taken into account in formulating the standards.[5]It should be clear from what we have said that the canon requiring texts to be so construed as to avoid serious constitutional problems has no application here. No matter how severe the constitutional doubt, courts may choose only between reasonably available interpretations of a text. See, e. g., Miller v. French, 530 U. S. 327, 341 (2000); Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998). The text of § 109(b), interpreted in its statutory and historical context and with appreciation for its importance to the CAA as a whole, unambiguously bars cost considerations from the NAAQS―setting process, and thus ends the matter for us as well as the EPA.[6] We therefore affirm the judgment of the Court of Appeals on this point.IIISection 109(b)(1) of the CAA instructs the EPA to set “ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of § 108] and allowing an adequate margin of safety, are requisite to protect the public health.” 42 U. S. C. § 7409(b)(1). The Court of Appeals held that this section as interpreted by the Administrator did not provide an “intelligible principle” to guide the EP A’s exercise of authority in setting NAAQS. “[The] EPA,” it said, “lack[ed] any determinate criteria for drawing lines. It has failed to state intelligibly how much is too much.” 175 F. 3d, at 1034. The court hence found that the EPA’s interpretation (but not the statute itself) violated the nondelegation doctrine. Id., at 1038. We disagree.In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. Article I, § 1, of the Constitution vests “[a]lliegislative Powers herein granted ... in a Congress of the United States.” This text permits no delegation of those powers, Loving v. United States, 517 U. S. 748, 771 (1996); see id., at 776-777 (SCALIA, J., concurring in part and concurring in judgment), and so we repeatedly have said that when Congress confers decision-making authority upon agencies Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J. W Hampton, Jr., &Co. v. United States, 276 U. S. 394, 409 (1928). We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute. Both Fahey v. Mallonee, 332 U. S. 245, 252-253 (1947), and Lichter v. United States, 334 U. S. 742, 783 (1948), mention agency regulations in the course of their nondelegation discussions, but Lichter did so because a subsequent Congress had incorporated the regulations into a revised version of the statute, ibid., and Fahey because the customary practices in the area, implicitly incorporated into the statute, were reflected in the regulations, 332 U. S., at 250. The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercise―that is to say, the prescription of the standard that Congress had omitted―would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency’s voluntary self-denial has no bearing upon the answer.We agree with the Solicitor General that the text of § 109(b)(1) of the CAA at a minimum requires that “[f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air.” Tr. of Oral Arg. in No. 99-1257, p. 5. Requisite, in turn, “mean[s] sufficient, but not more than necessary.”Id., at 7. These limits on the EPA’s discretion are strikingly similar to the ones we approved in Touby v. United States, 500 U. S. 160 (1991), which permitted the Attorney General to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing so was ”‘necessary to avoid an imminent hazard to the public safety.’” Id., at 163. They also resemble the Occupational Safety and Health Act of 1970 provision requiring the agency to “‘set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer any impairment of health’“―which the Court upheld in Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U. S. 607, 646 (1980), and which even then―Justice REHNQUIST, who alone in that case thought the statute violated the nondelegation doctrine, see id., at 671 (opinion concurring in judgment), would have upheld if, like the statute here, it did not permit economic costs to be considered. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 545 (1981) (REHNQUIST, J., dissenting).The scope of discretion § 109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite “intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.” 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). We have, on the other hand, upheld the validity of § 11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not “unduly or unnecessarily complicate[d]” and do not “unfairly or inequitably distribute voting power among security holders.”American Power &Light Co. v. SEC, 329 U. S. 90, 104 (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that”‘will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of thee] Act.’”Yakus v. United States, 321 U. S. 414, 420, 423-426 (1944). And we have found an “intelligible principle” in various statutes authorizing regulation in the “public interest.” See, e. g., National Broadcasting Co. v. United States, 319 U. S. 190, 225-226 (1943) (Federal Communications Commission’s power to regulate airwaves); New York Central Securities Corp. v. United States, 287 U. S. 12, 24-25 (1932) (Interstate Commerce Commission’s power to approve railroad consolidations). In short, 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.”Mistretta v. United States, 488 U. S. 361, 416 (1989) (SCALIA, J., dissenting); see id., at 373 (majority opinion).It is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred. See Loving v. United States, 517 U. S., at 772-773; United States v. Mazurie, 419 U. S. 544, 556-557 (1975). While Congress need not provide any direction to the EP A regarding the manner in which it is to define “country elevators,” which are to be exempt from new stationary―source regulations governing grain elevators, see 42 U. S. C. § 7411(i), it must provide substantial guidance on setting air standards that affect the entire national economy. But even in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a “determinate criterion” for saying “how much [of the regulated harm] is too much.” 175 F. 3d, at 1034. In Touby, for example, we did not require the statute to decree how “imminent” was too imminent, or how “necessary” was necessary enough, or even―most relevant here―how “hazardous” was too hazardous. 500 U. S., at 165-167. Similarly, the statute at issue in Lichter authorized agencies to recoup “excess profits” paid under wartime Government contracts, yet we did not insist that Congress specify how much profit was too much. 334 U. S., at 783-786. It is therefore not conclusive for delegation purposes that, as respondents argue, ozone and particulate matter are “nonthreshold” pollutants that inflict a continuum of adverse health effects at any airborne concentration greater than zero, and hence require the EPA to make judgments of degree. “[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action.”Mistretta v. United States, supra, at 417 (SCALIA, J., dissenting) (emphasis deleted); see 488 U. S., at 378-379 (majority opinion). Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is “requisite”―that is, not lower or higher than is necessary―to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.We therefore reverse the judgment of the Court of Appeals remanding for reinterpretation that would avoid a supposed delegation of legislative power. It will remain for the Court of Appeals―on the remand that we direct for other reasons―to dispose of any other preserved challenge to the NAAQS under the judicial-review provisions contained in 42 U. S. C. § 7607(d)(9).* * ****To summarize our holdings in these unusually complex cases: (1) The EPA may not consider implementation costs in setting primary and secondary NAAQS under § 109(b) of the CAA. (2) Section 109(b)(1) does not delegate legislative power to the EPA in contravention of Art. I, § 1, of the Constitution. * * *The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for proceedings consistent with this opinion.It is so ordered.JUSTICE THOMAS, concurring.I agree with the majority that § 109’s directive to the agency is no less an “intelligible principle” than a host of other directives that we have approved. Ante, at 474-476. I also agree that the Court of Appeals’ remand to the agency to make its own corrective interpretation does not accord with our understanding of the delegation issue. Ante, at 472-473. I write separately, however, to express my concern that there may nevertheless be a genuine constitutional problem with § 109, a problem which the parties did not address.The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the “intelligible principle” requirement as the only constitutional limit on congressional grants of power to administrative agencies, see J. W Hampton, Jr., &Co. v. United States, 276 U. S. 394, 409 (1928), the Constitution does not speak of “intelligible principles.” Rather, it speaks in much simpler terms: “All legislative Powers herein granted shall be vested in a Congress.” U. S. Const., Art. 1, § 1 (emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than “legislative.”As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.JUSTICE STEVENS, with whom JUSTICE SOUTER joins, concurring in part and concurring in the judgment.Section 109(b)(1) delegates to the Administrator of the Environmental Protection Agency (EPA) the authority to promulgate national ambient air quality standards (NAAQS). In Part III of its opinion, ante, at 472-476, the Court convincingly explains why the Court of Appeals erred when it concluded that § 109 effected “an unconstitutional delegation of legislative power.”American Trucking Assns., Inc. v. EPA, 175 F.3d 1027, 1033 (CADC 1999) (per curiam).I wholeheartedly endorse the Court’s result and endorse its explanation of its reasons, albeit with the following caveat.The Court has two choices. We could choose to articulate our ultimate disposition of this issue by frankly acknowledging that the power delegated to the EPA is “legislative” but nevertheless conclude that the delegation is constitutional because adequately limited by the terms of the authorizing statute. Alternatively, we could pretend, as the Court does, that the authority delegated to the EPA is somehow not “legislative power.” Despite the fact that there is language in our opinions that supports the Court’s articulation of our holding,[7] I am persuaded that it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is “legislative power.”[8]The proper characterization of governmental power should generally depend on the nature of the power, not on the identity of the person exercising it. See Black’s Law Dictionary 899 (6th ed. 1990) (defining “legislation” as, inter alia, “[f]ormulation of rule[s] for the future”); 1 K. Davis & R. Pierce, Administrative Law Treatise § 2.3, p. 37 (3d ed. 1994) (“If legislative power means the power to make rules of conduct that bind everyone based on resolution of major policy issues, scores of agencies exercise legislative power routinely by promulgating what are candidly called ‘legislative rules’ ”). If the NAAQS that the EP A promulgated had been prescribed by Congress, everyone would agree that those rules would be the product of an exercise of “legislative power.” The same characterization is appropriate when an agency exercises rulemaking authority pursuant to a permissible delegation from Congress.My view is not only more faithful to normal English usage, but is also fully consistent with the text of the Constitution. In Article I, the Framers vested “All legislative Powers” in the Congress, Art. I, § 1, just as in Article II they vested the “executive Power” in the President, Art. II, § 1. Those provisions do not purport to limit the authority of either recipient of power to delegate authority to others. See Bowsher v. Synar, 478 U. S. 714, 752 (1986) (STEVENS, J., concurring in judgment) (“Despite the statement in Article I of the Constitution that ‘All legislative powers herein granted shall be vested in a Congress of the United States,’ it is far from novel to acknowledge that independent agencies do indeed exercise legislative powers”); INS v. Chadha, 462 U. S. 919, 985-986 (1983) (White, J., dissenting) (“[L]egislative power can be exercised by independent agencies and Executive departments ...”); 1 Davis & Pierce, Administrative Law Treatise § 2.6, at 66 (“The Court was probably mistaken from the outset in interpreting Article 1’s grant of power to Congress as an implicit limit on Congress’ authority to delegate legislative power”). Surely the authority granted to members of the Cabinet and federal law enforcement agents is properly characterized as “Executive” even though not exercised by the President. Cf. Morrison v. Olson, 487 U. S. 654, 705-706 (1988) (SCALIA, J., dissenting) (arguing that the independent counsel exercised “executive power” unconstrained by the President).It seems clear that an executive agency’s exercise of rulemaking authority pursuant to a valid delegation from Congress is “legislative.” As long as the delegation provides a sufficiently intelligible principle, there is nothing inherently unconstitutional about it. Accordingly, while I join Parts I, II, and IV of the Court’s opinion, and agree with almost everything said in Part III, I would hold that when Congress enacted § 109, it effected a constitutional delegation of legislative power to the EP A.JUSTICE BREYER, concurring in part and concurring in the judgment.I join Parts I, III, and IV of the Court’s opinion. I also agree with the Court’s determination in Part II that the Clean Air Act does not permit the Environmental Protection Agency to consider the economic costs of implementation when setting national ambient air quality standards under § 109(b)(1) of the Act. But I would not rest this conclusion solely upon § 109’s language or upon a presumption, such as the Court’s presumption that any authority the Act grants the EP A to consider costs must flow from a “textual commitment” that is “clear.”Ante, at 468. In order better to achieve regulatory goals―for example, to allocate resources so that they save more lives or produce a cleaner environment―regulators must often take account of all of a proposed regulation’s adverse effects, at least where those adverse effects clearly threaten serious and disproportionate public harm. Hence, I believe that, other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting, not forbidding, this type of rational regulation.In these cases, however, other things are not equal. Here, legislative history, along with the statute’s structure, indicates that § 109’s language reflects a congressional decision not to delegate to the agency the legal authority to consider economic costs of compliance.For one thing, the legislative history shows that Congress intended the statute to be “technology forcing.” Senator Edmund Muskie, the primary sponsor of the 1970 amendments to the Act, introduced them by saying that Congress’ primary responsibility in drafting the Act was not “to be limited by what is or appears to be technologically or economically feasible,” but “to establish what the public interest requires to protect the health of persons,” even if that means that “industries will be asked to do what seems to be impossible at the present time.”116 Congo Rec. 32901-32902 (1970), 1 Legislative History of the Clean Air Amendments of 1970 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-18,The Senate directly focused upon the technical feasibility and cost of implementing the Act’s mandates. And it made clear that it intended the Administrator to develop air quality standards set independently of either. The Senate Report for the 1970 amendments explains:“In the Committee discussions, considerable concern was expressed regarding the use of the concept of technical feasibility as the basis of ambient air standards. The Committee determined that 1) the health of people is more important than the question of whether the early achievement of ambient air quality standards protective of health is technically feasible; and, 2) the growth of pollution load in many areas, even with application of available technology, would still be deleterious to public health ....“Therefore, the Committee determined that existing sources of pollutants either should meet the standard of the law or be closed down ....” S. Rep. No. 91-1196, pp. 2-3 (1970), 1 Leg. Hist. 402-403 (emphasis added).Indeed, this Court, after reviewing the entire legislative history, concluded that the 1970 amendments were “expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible.” Union Elec. Co.v. EPA, 427 U. S. 246, 257 (1976) (emphasis added). And the Court added that the 1970 amendments were intended to be a “drastic remedy to ... a serious and otherwise uncheckable problem.”Id., at 256. Subsequent legislative history confirms that the technology―forcing goals of the 1970 amendments are still paramount in today’s Act. See Clean Air Conference Report (1977): Statement of Intent; Clarification of Select Provisions, 123 Congo Rec. 27070 (1977) (stating, regarding the 1977 amendments to the Act, that “this year’s legislation retains and even strengthens the technology forcing ... goals of the 1970 Act”); S. Rep. No. 101-228, p.5 (1989) (stating that the 1990 amendments to the Act require ambient air quality standards to be set at “the level that ‘protects the public health’ with an ‘adequate margin of safety,’without regard to the economic or technical feasibility of attainment”(emphasis added)).To read this legislative history as meaning what it says does not impute to Congress an irrational intent. Technology-forcing hopes can prove realistic. Those persons, for example, who opposed the 1970 Act’s insistence on a 90% reduction in auto emission pollutants, on the ground of excessive cost, saw the development of catalytic converter technology that helped achieve substantial reductions without the economic catastrophe that some had feared. See § 6(a) of the Clean Air Act Amendments of 1970, amending §§ 202(b)(1)(A), (B), 84 Stat. 1690 (codified at 42 U. S. C. §§ 7521(b)(1)(A), (B)) (requiring a 90% reduction in emissions); 1 Leg. Hist. 238, 240 (statement of Sen. Griffin) (arguing that the emissions standards could “force [the automobile] industry out of existence” because costs “would not be taken into account”); see generally Reitze, Mobile Source Air Pollution Control, 6 Env. Law. 309, 326-327 (2000) (discussing the development of the catalytic converter).At the same time, the statute’s technology-forcing objective makes regulatory efforts to determine the costs of implementation both less important and more difficult. It means that the relevant economic costs are speculative, for they include the cost of unknown future technologies. It also means that efforts to take costs into account can breed time-consuming and potentially unresolvable arguments about the accuracy and significance of cost estimates. Congress could have thought such efforts not worth the delays and uncertainties that would accompany them. In any event, that is what the statute’s history seems to say. See Union Elec., supra, at 256-259. And the matter is one for Congress to decide.Moreover, the Act does not, on this reading, wholly ignore cost and feasibility. As the majority points out, ante, at 466-467, the Act allows regulators to take those concerns into account when they determine how to implement ambient air quality standards. Thus, States may consider economic costs when they select the particular control devices used to meet the standards, and industries experiencing difficulty in reducing their emissions can seek an exemption or variance from the state implementation plan. See Union Elec., supra, at 266 (“[T]he most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan”).The Act also permits the EPA, within certain limits, to consider costs when it sets deadlines by which areas must attain the ambient air quality standards. 42 U. S. C. § 7502(a)(2)(A) (providing that “the Administrator may extend the attainment date ... for a period no greater than 10 years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures”); § 7502(a)(2)(C) (permitting the Administrator to grant up to two additional 1-year extensions); cf. §§ 7511(a)(1), (5) (setting more rigid attainment deadlines for areas in nonattainment of the ozone standard, but permitting the Administrator to grant up to two 1-year extensions). And Congress can change those statutory limits if necessary. Given the ambient air quality standards’ substantial effects on States, cities, industries, and their suppliers and customers, Congress will hear from those whom compliance deadlines affect adversely, and Congress can consider whether legislative change is warranted. See, e. g., Steel Industry Compliance Extension Act of 1981, 95 Stat. 139 (codified at 42 U. S. C. § 7413(e) (1988 ed.)) (repealed 1990) (granting the Administrator discretion to extend the ambient air quality standard attainment date set in the 1977 Act by up to three years for steelmaking facilities).Finally, contrary to the suggestion of the Court of Appeals and of some parties, this interpretation of § 109 does not require the EPA to eliminate every health risk, however slight, at any economic cost, however great, to the point of “hurtling” industry over “the brink of ruin,” or even forcing “deindustrialization.”American Trucking Assns., Inc. v. EPA, 175 F.3d 1027, 1037, 1038, n. 4 (CADC 1999); see also Brief for Cross-Petitioners in No. 99-1426, p. 25. The statute, by its express terms, does not compel the elimination of all risk; and it grants the Administrator sufficient flexibility to avoid setting ambient air quality standards ruinous to industry.Section 109(b)(1) directs the Administrator to set standards that are “requisite to protect the public health” with “an adequate margin of safety.” But these words do not describe a world that is free of all risk―an impossible and undesirable objective. See Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U. S. 607, 642 (1980) (plurality opinion) (the word “safe” does not mean “riskfree”). Nor are the words “requisite” and “public health” to be understood independent of context. We consider football equipment “safe” even if its use entails a level of risk that would make drinking water “unsafe” for consumption. And what counts as “requisite” to protecting the public health will similarly vary with background circumstances, such as the public’s ordinary tolerance of the particular health risk in the particular context at issue. The Administrator can consider such background circumstances when “decid[ing] what risks are acceptable in the world in which we live.”Natural Resources Defense Council, Inc. v. EPA, 824 F.2d 1146, 1165 (CADC 1987).The statute also permits the Administrator to take account of comparative health risks. That is to say, she may consider whether a proposed rule promotes safety overall. A rule likely to cause more harm to health than it prevents is not a rule that is “requisite to protect the public health.” For example, as the Court of Appeals held and the parties do not contest, the Administrator has the authority to determine to what extent possible health risks stemming from reductions in tropospheric ozone (which, it is claimed, helps prevent cataracts and skin cancer) should be taken into account in setting the ambient air quality standard for ozone. See 175 F. 3d, at 1050-1053 (remanding for the Administrator to make that determination).The statute ultimately specifies that the standard set must be “requisite to protect the public health”“in the judgment of the Administrator,”§ 109(b)(1), 84 Stat. 1680 (emphasis added), a phrase that grants the Administrator considerable discretionary standard-setting authority.The statute’s words, then, authorize the Administrator to consider the severity of a pollutant’s potential adverse health effects, the number of those likely to be affected, the distribution of the adverse effects, and the uncertainties surrounding each estimate. Cf. Sun stein, Is the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 303, 364 (1999). They permit the Administrator to take account of comparative health consequences. They allow her to take account of context when determining the acceptability of small risks to health. And they give her considerable discretion when she does so.This discretion would seem sufficient to avoid the extreme results that some of the industry parties fear. After all, the EPA, in setting standards that “protect the public health” with “an adequate margin of safety,” retains discretionary authority to avoid regulating risks that it reasonably concludes are trivial in context. Nor need regulation lead to deindustrialization. Preindustrial society was not a very healthy society; hence a standard demanding the return of the Stone Age would not prove “requisite to protect the public health.”Although I rely more heavily than does the Court upon legislative history and alternative sources of statutory flexibility, I reach the same ultimate conclusion. Section 109 does not delegate to the EPA authority to base the national ambient air quality standards, in whole or in part, upon the economic costs of compliance.Notes and Questions.1. Is it possible to harmonize the majority opinion’s discussion of statutory interpretation to avoid constitutional infirmity with that you studied earlier in Holy Trinity?2. Can you articulate the differences in the opinions about the scope and application of the non-delegation doctrine? Can they be squared with Mistretta?__________III. The Administrative Branches: The Non-Delegation Doctrine, An IntroductionWe have been looking at the theory of the organization of the United States government and its application by the Supreme Court in times of great contests between the branches of government. We have seen how the structural solutions to contests for power in a government based on the division of power and inter-branch cooperation for effective action (separation of powers and checks and balances) are meant to implement the three foundational political principles of governmental organization: federalism[9] (general government of limited power), efficiency (government ought to be able to effectively assert its delegated powers), and tyranny avoidance (no person or branch of government ought to be able to consolidate governmental authority to itself). We have also seen how those struggles are both legal (the search for structural constraints in the constitution) and political (popular accountability to distinct segments of the electorate). There is also an element of good faith and constitutional loyalty built into the system.But no amount of legal constraints will keep a government functioning where the branches choose to avoid cooperation and seek to act aggressively against the others. The U.S. government, then, is built on both law and politics. It is grounded in a faith[10] that the political social norms (the foundational political line embraced by the people and its leaders―memorialized in the three principles of government (federalism, efficiency and tyranny avoidance) will be applied without the need for compulsion and that officials will be held accountable by their respective electorate when they move toward constitutional crisis by failing to adhere to the foundational American political line. (e.g., Robin West, Constitutional Fidelity and Democratic Legitimacy,[11] American Constitutional Society for Law and Policy, July 2007). This notion of constitutional faithfulness perhaps lies in the focus on oath taking in the U.S. Constitution (see, e.g., U.S. Const. Art. I §3; Art. II, §1; Art. VI). And it is important in other constitutional systems as well, though expressed perhaps differently in Germany and China, for example. (e.g., Backer, Larry Catá, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the ‘Three Represents’), Socialist Rule of Law, and Modern Chinese Constitutionalism.[12] Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006).The student was also introduced to the interpretive difficulties of judicial application of the structural limits on governmental power to be exercised by the respective branches of the general government as embodied in the Constitution. The student was introduced to two important approaches to reading the constitution and interpreting its text. The first, formalism, looks principally to the express text of the provisions that may apply. The second, functionalism, looks principally to effects drawn from the intent and objectives of the text to be applied. The opinions in the Steel Seizure Case provided good examples of the consequences of applying either approach to the outcome of the case and the conclusions to be drawn from the text examined. Justice Black’s opinion, solidly formalist, led inexorably to the conclusion that the president was without power to seize the steel mills without Congressional acquiesce, whatever the consequences for the war effort that drove him to that action. The Chief Justice in dissent reached the opposite conclusion in a solidly functionalist reading of the text. He was not prepared to allow a narrow reading of the text get in the way of Presidential discretion in aid of the war effort. The middle ground, blending formal and functional concerns, was provided by the concurrence of Justice Jackson, who developed a multipart standard for testing the scope of Presidential discretion. In that case, however, Justice Jackson found that the limits of discretion (and the limits of a functional reading) exceeded principally because the President had functionally equivalent tools to get to his objective (the continued production of steel) that the President found politically unpalatable though they were legally suitable to meet his ends.With this class we consider another aspect of governmental organization, one where one might view the fundamental principles of checks and balances and separation of powers inverted. Here we take up the role of the administrative state in the organization of government, and its relation to the carefully crafted government organization grounded in those principles of federalism, separation of powers and checks and balances. We will discover that despite heroic efforts to harmonize them, the organization of the administrative sub-structure of the American general government, presents a potentially quite distinct approach to the application of these principles, one that remains controversial.The issues are nicely exposed in our first reading, Peter Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum.L.Rev. 573 (1984). He describes the problem in structural terms:At the root of these problems lies a difficulty in understanding the relationships between the agencies that actually do the work of law-administration, whose existence is barely hinted at in the Constitution, and the three constitutionally named repositories of all governmental power—Congress, President, and Supreme Court. [W]hen, for example, a federal agency adopts a legislative “rule” following the procedures of the Administrative Procedure Act, how is this act to be understood constitutionally? In a colloquial sense, the agency is acting legislatively—that is, creating general statements of positive law whose application to an indefinite class awaits future acts and proceedings. Validly adopted legislative rules are identical to statutes in their impact on all relevant legal actors—those subject to their constraints, those responsible for their administration, and judges or others who may have occasion to consider them in the course of their activities. Does it follow that in the constitutional sense what the agency is doing should be regarded as an exercise of the “legislative powers . . . granted” by article I, “all” of which are vested in Congress? Or, given statutory authorization, is it to be regarded as an exercise of the executive authority vested in the President by article II, the judicial power placed in the Supreme Court (and statutorily created inferior courts) by article III, [FN13] or authority merely statutory in provenance? The Constitution names and ascribes functions only to the Congress, President and Supreme Court, sitting in uneasy relation at the apex of the governmental structure; it leaves undiscussed what might be the necessary and permissible relationships of each of these three constitutional bodies to the agency making the rule. Is it significant for any of these purposes whether the rulemaking authority has been assigned to a cabinet department or to an independent regulatory commission? Indeed, does it make sense to look to the Constitution, written so many years ago, for contemporary guidance or limits on the sorts of arrangements Congress can make? (Strauss, supra, 575-77).He suggests that the conventional notions of separation of powers and checks and balances may provide formal comfort but do not fit comfortably within the framework in which these agencies actually function. Instead he argues for a more functional approach, one that is premised on a notion that administrative agencies represent something like a “headless fourth branch of government,” (Ibid, 578) whose relationship to the other three is not the same as those that apply between executive, legislative and judicial branches. Instead, he argues “for any consideration of the structure given law-administration below the very apex of the governmental structure, the rigid separation-of-powers compartmentalization of governmental functions should be abandoned in favor of analysis in terms of separation of functions and checks and balances.” (Ibid., 578).
This approach, he suggests, avoids the difficulties that the formalist project gas had in fitting this new center of power (usually understood as subordinate to the three co-equal branches of government accountable to the people under American democratic principles of government), within a structural framework which never contemplated either its existence or place within the organization of the federal government. This essentially functional approach, he argues, provides a more realistic approach to understanding (and perhaps also constraining within the base line principles of governmental organization (federalism, efficiency and tyranny avoidance)) the regulatory apparatus of state. (Ibid., 579-80).“Separation of functions” suggests a somewhat different idea, grounded more in considerations of individual fairness in particular proceedings than in the need for structural protection against tyrannical government generally. It admits that for agencies (as distinct from the constitutionally named heads of government) the same body often does exercise all three of the characteristic governmental powers, albeit in a web of other controls—judicial review and legislative and executive oversight. As these controls are thought to give reasonable assurance against systemic lawlessness, the separation-of-functions inquiry asks to what extent constitutional due process for the particular individual(s) who may be involved with an agency in a given proceeding requires special measures to assure the objectivity or impartiality of that proceeding. The powers are not kept separate, at least in general, but certain procedural protections—for example, the requirement of an on-the-record hearing before an “impartial” trier—may be afforded. (Ibid., 577-8).But it works principally because this Fourth Branch is essentially subordinate and accountable to the apex branches of government that are meant to assert a constant and powerful oversight of the activities of the administrative apparatus they have created. “Each agency is subject to control relationships with some or all of the three constitutionally named branches, and those relationships give an assurance—functionally similar to that provided by the separation-of-powers notion for the constitutionally named bodies—that they will not pass out of control.” (Ibid., 579) The effort is ultimately directed at regularizing and perhaps providing a theory under which one could bring together the basic principles of American government organization grounded in separation and cooperation under constraint, with the realities of an administrative apparatus which is less focused on formal separation and requires cooperation among the distinct branches of government in order to operate efficiently, the basic structures of which are nicely described in Part I (Ibid., 581-96). Yet it is not clear that such oversight is likely or effective, especially in those regulatory areas that are highly technical and the regulatory basis of which is constantly changing to meet either market conditions or changes in scientific, engineering or technical knowledge.
Strauss notes that this distinct and function approach is required because the administrative state represents a great shift from the 18th century of government which was the basis for the organization of the general government into three branches with an executive, the President, assisted by a small number of cabinet officers. (Ibid., 581-2). He identifies four propositions that encapsulate the modern administrative state in the West (and in the U.S. in particular):1. The federal agencies are placed in the structure of federal government—as cabinet agencies, independent executive agencies, or independent regulatory commissions—without apparent regard for the functions they are to perform. Their internal and public procedures do not vary with their placement. The functions they perform belie simple classification as “legislative,”“executive,” or “judicial,” but partake of all three characteristics.2. All agencies, whether denominated executive or independent, have relationships with the President in which he is neither dominant nor powerless. They are all subject to presidential direction in significant aspects of their functioning, and able to resist presidential direction in others (generally concerning substantive decisions).3. All agencies have oversight relationships with Congress and the federal judiciary, and these relationships generally do not vary with the type of agency used.
4. The characteristics of the oversight relations of President and Congress with “executive” and “independent” agencies owe as much (or more) to politics as to law. (Ibid., 583).Hinting at a relationship between agencies and the three branches of government as echoing that between a corporate board of directors and corporate officers, Strauss suggests that agencies have been allocated the day to day responsibilities of government by the representative organs of government now better equipped to consider policy and direction. A similar pattern could be discerned in the European Union from the 1980s when it changed its regulatory stance from technical to objectives based regulation. Yet this allocation has not been made along functional lines; rather pragmatic concessions to political realities and compromises has produced a patchwork of overlapping agencies with distinct characteristics and relationships to the three major branches of government. (Ibid, 584-85). What they do have in common, however are internal structures, function and procedures; and all are staffed by a professionalized bureaucracy whose staff are protected from political reprisal (to some extent) in the performance of their jobs. (Ibid., 586). I note only to some extent because, as Congress and the President have evidenced on occasion, disfavored agencies may have their budgets slashed and their staff diverted by exercises in oversight that can critically affect the operation of an agency so singled out for special and usually politically motivated treatment.
But that also is consonant with Strauss’s point that these agencies now are managed through cooperative arrangements among the executive, congress and the courts. The three branches of government, then, must cooperate to manage a bureaucracy of administrative agencies whose role includes quasi-executive, quasi-legislative and quasi-judicial tasks. The result is an inversion of sorts. The constitutionally mandated reparation of powers at the apex level of government is abandoned and a different sort of separation of powers is attempted. For administrative agencies, the executive, legislative and judicial functions may be aggregated in one organization, subject to a cooperative oversight by superior branches of government.
The extent of that oversight, its strengths and weaknesses, are nicely illustrated by the two cases for consideration today, Mistretta v. U.S., 488 U.S. 361 (1988) and Whitman v. American Trucking Association,[13] 531 U.S. 457 (2001).
Mistretta considered the structural limits in the U.S. Constitution for creating an agency, the United States Sentencing Commission,[14] appointing to that commission members of the federal judiciary, and vesting it with authority to determine mandatory sentences for federal crimes. According to its website,The United States Sentencing Commission is an independent agency in the judicial branch of government. Its principal purposes are: (1) to establish sentencing policies and practices for the federal courts, including guidelines to be consulted regarding the appropriate form and severity of punishment for offenders convicted of federal crimes; (2) to advise and assist Congress and the executive branch in the development of effective and efficient crime policy; and (3) to collect, analyze, research, and distribute a broad array of information on federal crime and sentencing issues, serving as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public. (USSC, An Overview of the U.S. Sentencing Commission).Sentencing, itself, had not been thought to be a function reserved in the federal Constitution exclusively to one of the branches of government under separation of powers principles. The three branches effectively shared responsibility for sentencing―Congress set sentencing ranges, judges imposed sentences within these ranges or suspended sentences where permitted, and the executive asserted a power of early release (the parole power) effectively reducing the time to be served by an individual convicted of a crime. The source of the substantive issue considered by the court focused on a determination by Congress that the then current system of indeterminate sentencing supplemented by a system of parole,[15] which permitted judges substantial discretion, was not satisfactory to it for a variety of policy and political reasons.To fix this problem, Congress eventually settled on a new approach, based on mandatory-guideline system. To reform the then current system the Congress enacted the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984 (Pub.L. 98–473,[16] S. 1762, 98 Stat.[17] 1976).The facts under which Supreme Court consideration of the constitutionality of the Sentencing Commission arose are simple, and grounded in an attack on the authority of the Sentencing Commission to promulgate criminal sentences: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. * * * * (Mistretta, II).A majority of the Supreme Court concluded "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." We are concerned with that portion of the opinion that focused on that delegation.The general doctrine applied by the Supreme Court in determining the extent of permissible delegation of apex branch power to an administrative agency is known as the "non-delegaiton doctrine," one grounded in the separation of powers principle. The Court explained: "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 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, 692 (1892)." (Ibid., III). But the constitutionally mandated structural constraint that Congress cannot delegate its legislative power does not mean that it may not secure something like a constrained functionally equivalent result by other means, ones grounded in checks and balances and the right of the three branches to cooperate. "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."To satisfy the constraints of the non-delegation doctrine the Supreme Court has established a standard against which such delegations are considered. "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 co-ordination." J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 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 409." (Ibid, III).This intelligible principle test is "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. " (Ibid). The principle of efficiency (necessity) here appear to trump those of separation of powers. Pragmatism, then, and the ascendency of a functionalist sometimes drives Constitutional interpretation even when a formalist reading might have led the Court to reject this approach. This was the case here. But consider whether a formalist approach might have produced a functionally equivalent result by other means. Had the Court refused to create this wide exception to non-delegation on separation of powers grounds, could the same end shave been met with the incorporation of a change to the text of the constitution permitting the organization of a regulatory agency branch of government? If so, the discourse would have been different--not one involving legal theory and applied by lawyers and courts, but one involving political theory and participation by the democratically elected branches plus the electorate. Yet the judicial approach was sensible to the extent it created the possibility of efficient government efficiently; invoking the political process to change the structure of democratic states can be quite inefficient. Yet the political process might be sensible in a different way, preserving the legitimacy of the government created by popular consent on democratic principles. These arguments in a variety of forms continue unresolved and perhaps in our system unresolvable.The Supreme Court majority noted a history of substantially broad delegations of power under this standard since the economic crisis of the 1930s.-->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 . . . . Congress further specified four "purposes" of sentencing that the Commission must pursue in carrying out its mandate. . . . 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). . . . Moreover, Congress directed the Commission to use current average sentences "as a starting point" for its structuring of the sentencing ranges. § 994(m). (Ibid).The court also stressed the limiting principle for delegation quoting Yakus v. U.S., 321 U.S. 414 (1944): "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 426. " (Ibid., III).Given this broad reading of intelligible principle, there was more than enough guidance to meet the standard. " 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)." (Ibid).The Majority then considered the separation of powers issue more directly. It noted the importance of the underlining principles that created a pragmatic and flexible approach to differentiated governmental power, which the Court drew form Justice Jackson's concurrence in the Steel Seizure Case. ""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, 635 (1952) (concurring opinion). " (Ibid., IV).These principles produce the standard the Court applies to judge challenges to Congressional action grounded in separation of powers principle--a "most compelling constitutional reasons" standard where a stature has been challenged that has been approved by both houses of Congress and signed by the President. (Ibid). Yet even under this standard this is a close case; but not close enough to warrant invalidation. (Ibid).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 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. (Ibid).Thus, the issue here is one of judicial rule making. May members of the judicial branch exercise quasi legislative authority delegated to them by the legislative branch of the government, even when that delegation conforms to the constraints of the non-delegation doctrine? Though the Court admits that delegating quasi legislative power to the judiciary falls in a twilight area that is at best suspect, the difficulty is averted in this case because the delegation relates to the establishment of rules for the conduct of the business of the judicial branch itself. (Ibid). That is a delegation that has been acquiesced to by Congress in a variety of matters, including the establishment of federal rules of criminal and civil procedure and the rules of evidence.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. * * * * * 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 the Judiciary always has played, and continues to play, in sentencing. (Ibid).Justice Scalia, in dissent raised an interesting separation of powers issue, but one that was precisely interesting only because it suggested the uniqueness of the case before the Court. For Justice Scalia the delegation crossed a line, one that could not be papered over with the intelligent principle doctrine. “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. . . . 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.”The next reading, Whitman v. American Trucking Association, 531 U.S. 457 (2001), suggests the broadness of the Court's reading of the "intelligible principle" standard.Section 109(b)(1) of the [Clean Air Act] instructs the EPA to set “ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of §108] and allowing an adequate margin of safety, are requisite to protect the public health.” 42 U. S. C. § 7409(b)(1). The Court of Appeals held that this section as interpreted by the Administrator did not provide an “intelligible principle” to guide the EPA’s exercise of authority in setting NAAQS. “[The] EPA,” it said, “lack[ed] any determinate criteria for drawing lines. It has failed to state intelligibly how much is too much.” 175 F. 3d, at 1034. The court hence found that the EPA’s interpretation (but not the statute itself) violated the non- delegation doctrine. Id., at 1038. We disagree.First Justice Scalia noted that an agency could not, of itself, cure an illegitimate delegation of legislative power. "Whether the statute delegates legislative power is a question for the courts, and an agency’s voluntary self- denial has no bearing upon the answer." (Ibid., 473).He then concluded that the standard challenged in the Clean Air Act ("to set primary ambient air quality standards “the attainment and maintenance of which . . . are requisite to protect the public health” with “an adequate margin of safety.”" Ibid., 465), was sufficiently intelligible to meet the non-delegation standard test.The scope of discretion §109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite “intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.”. . . . We have, on the other hand, upheld the validity of §11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not “unduly or unnecessarily complicate[d]” and do not “unfairly or inequitably distribute voting power among se- curity holders.”. . . We have approved the wartime conferral of agency power to fix the prices of commodities at a level that “ ‘will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.’”. . . And we have found an “intelligible principle” in various statutes authorizing regulation in the “public interest.” (Ibid., 474).The limiting principle, if any, is to be gleaned from the context in which delegation is attempted. "While Congress need not provide any direction to the EPA regarding the manner in which it is to define “country elevators,” which are to be exempt from new- stationary-source regulations governing grain elevators, see 42 U. S. C. § 7411(i), it must provide substantial guidance on setting air standards that affect the entire national economy.", (Ibid, 475). Here there was sufficient direction by requiring that the regulation be "requisite"--"that is, not lower or higher than necessary-- to protect the public health with an adequate margin of safety" meets the standard.And thus, we move from the theoretical elegance of separation of powers and federalism, with its strong premise against aggregations of power and tyranny, to the non-delegation doctrine applied to administrative agencies. Here the theory of separation of powers gives way to the pragmatism of cooperative governance of checks and balances and the underlying premise of efficiency in government. Below the highest levels of government organization, the three part division of government power does not apply. Legislative, judicial and administrative power may be amalgamated in any number of ways without constitutional problem--as long as such mixing is overseen by higher levels of government sharing responsibility for that mix and providing the resulting apparatus some miniscule appearance of direction. Separation of powers within the federal government, then, has a vertical as well as a horizontal dimension. But they are applied in quite distinct ways in the non-political branches and require a more intense legalization of their political constraints.IV. ProblemThe federal courts have long had authority to establish their own procedures under the Rules Enabling Act (ch. 651, Pub.L. 73–415, 48 Stat. 1064, enacted June 19, 1934, 28 U.S.C. §§ 2071-2077). The Rules Enabling Act provides in relevant part:§ 2071(a) The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under section 2072 of this title.(b) Any rule prescribed by a court, other than the Supreme Court, under subsection (a) shall be prescribed only after giving appropriate public notice and an opportunity for comment. Such rule shall take effect upon the date specified by the prescribing court and shall have such effect on pending proceedings as the prescribing court may order.* * *(e) If the prescribing court determines that there is an immediate need for a rule, such court may proceed under this section without public notice and opportunity for comment, but such court shall promptly thereafter afford such notice and opportunity for comment.(f) No rule may be prescribed by a district court other than under this section.§ 2072(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.In Sibbach v. Wilson & Co., 312 U.S. 1 (1941) the Supreme Court held that Congress had the authority to delegate rule making power to the courts, consistent with separation of powers principlesYou have been asked to write a memo addressing the following issues:1. May Congress amend to Rules Enabling Act to provide that the courts shall have no power to prescribe general rules of practice and procedure but that such rules will be enacted (a) solely by Congress or (b) by a new administrative agency consisting of the representatives of U.S. Attorney General, members appointed by the Senate and the House of Representatives?2. May Congress amend the Rules Enabling Act to provide that the Supreme Court shall have the sole power to prescribe general rules of practice and procedure for state courts when they are hearing claims or causes of action based on federal constitutional, statutory or treaty law?3. Assuming any variation of these choices is permitted, to what extent should the rules developed thereunder be accorded deference under Chevron?4. To what extent are your answers strengthened or weakened by the choice of analytical framework? Do your answers depend on whether you use a formalist approach tied strictly to an interpretation of text, or one based on starting with the objectives of the actions (the intent of the drafters)? Which statutory construction techniques are most useful to deciding the questions?In addition to the materials you have already read, the following materials may be used to guide your analysis.U.S. Constitution Article IIISection 1.The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.Section 2.The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.SIBBACH v. WILSON & CO.312 U.S. 1 (1941)Mr. Justice ROBERTS delivered the opinion of the Court.This case calls for decision as to the validity of Rules 35 and 37 of the Rules of Civil Procedure for District Courts of the United States. 1In an action brought by the petitioner in the District Court for Northern Illinois to recover damages for bodily injuries, inflicted in Indiana, respondent answered denying the allegations of the complaint, and moved for an order requiring the petitioner to submit to a physical examination by one or more physicians appointed by the court to determine the nature and extent of her injuries. The court ordered that the petitioner submit to such an examination by a physician so appointed.Compliance having been refused, the respondent obtained an order to show cause why the petitioner should [312 U.S. 1, 7] not be punished for contempt. In response the petitioner challenged the authority of the court to order her to submit to the examination, asserting that the order was void. It appeared that the courts of Indiana, the state where the cause of action arose, hold such an order proper, 2 whereas the courts of Illinois, the state in which the trial court sat, hold that such an order cannot be made. 3 Neither state has any statute governing the matter.The court adjudged the petitioner guilty of contempt, and directed that she be committed until she should obey the order for examination or otherwise should be legally discharged from custody. The petitioner appealed.The Circuit Court of Appeals decided that Rule 35, which authorizes an order for a physical examination in such a case, is valid, and affirmed the judgment. 4 The writ of certiorari ws granted because of the importance of the question involved.The Rules of Civil Procedure were promulgated under the authority of the Act of June 19, 1934,5 which is:'Be it enacted ... That the Supreme Court of the United States shall have the power to prescribe, by general rules, for the district courts of the United States and for the courts of the District of Columbia, the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law. Said rules shall neither abridge, enlarge, nor modify the substantive [312 U.S. 1, 8] rights of any litigant. They shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect.'Sec. 2. The court may at any time unite the general rules prescribed by it for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both: Provided, however, That in such union of rules the right of trial by jury as at common law and declared by the seventh amendment to the Constitution shall be preserved to the parties inviolate. Such united rules shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session.'The text of the relevant portions of Rules 35 and 37 is:'Rule 35. Physical And Mental Examination Of Persons'(a) Order for Examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.''Rule 37. Refusal To Make Discovery: Consequences'(a) Refusal to Answer. ...'(b) Failure to Comply With Order.'(1) Contempt. If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court in the district in which the deposition is being taken, the refusal may be considered a contempt of that court. [312 U.S. 1, 9] '(2) Other Consequences. If any party ... refuses to obey ... an order made under Rule 35 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following:'(i) An order that ... the physical or mental condition of the party ... shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;'(ii) An order ... prohibiting (the disobedient party) ... from introducing evidence of physical or mental condition;'(iii) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;'(iii) An order striking out pleadings or orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination.'The contention of the petitioner, in final analysis, is that Rules 35 and 37 are not within the mandate of Congress to this court. This is the limit of permissible debate, since argument touching the broader questions of Congressional power and of the obligation of federal courts to apply the substantive law of a state is foreclosed.Congress has undoubted power to regulate the practice and procedure of federal courts,6 and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes [312 U.S. 1, 10] or Constitution of the United States;7 but it has never essayed to declare the substantive state law, or to abolish or nullify a right recognized by the substantive law of the state where the cause of action arose, save where a right or duty is imposed in a field committed to Congress by the Constitution. On the contrary it has enacted that the state law shall be the rule of decision in the federal courts. 8Hence we conclude that the Act of June 19, 1934, was purposely restricted in its operation to matters of pleading and court practice and procedure. Its two provisos or caveats emphasize this restriction. The first is that the court shall not 'abridge, enlarge, nor modify the substantive rights', in the guise of regulating procedure. The second is that if the rules are to prescribe a single form of action for cases at law and suits in equity, the constitutional right to jury trial inherent in the former must be preserved. There are other limitations upon the authority to prescribe rules which might have been, but were not mentioned in the Act; for instance, the inability of a court, by rule, to extend or restrict the jurisdiction conferred by a statute. 9Whatever may be said as to the effect of the Conformity Act10 while it remained in force, the rules, if they are within the authority granted by Congress, repeal that statute, and the District Court was not bound to follow the Illinois practice respecting an order for physical examination. On the other hand if the right to be exempt from such an order is one of substantive law, the Rules [312 U.S. 1, 11] of Decision Act11 required the District Court, though sitting in Illinois, to apply the law of Indiana, the state where the cause of action arose, and to order the examination. To avoid this dilemma the petitioner admits, and, we think, correctly, that Rules 35 and 37 are rules of procedure. She insists, nevertheless, that by the prohibition against abridging substantive rights, Congress has banned the rules here challenged. In order to reach this result she translates 'substantive' into 'important' or 'substantial' rights. And she urges that if a rule affects such a right, albeit the rule is one of procedure merely, its prescription is not within the statutory grant of power embodied in the Act of June 19, 1934. She contends that our decisions and recognized principles require us so to hold.The petitioner relies upon Union Pacific Railway Co. v. Botsford, 141 U.S. 250 , 11 S.Ct. 1000, and Camden & Suburban R. Co. v. Stetson, 177 U.S. 172 , 20 S.Ct. 617. But these cases in reality sustain the validity of the rules. In the Botsford case an action to recover for a personal injury suffered in the territory of Utah12 was instituted in the United States Circuit Court for Indiana, which refused to order a physical examination. This court affirmed, on the ground that no authority for such an order was shown. There was no suggestion that the question was one of substantive law. The court first examines the practice at common law and finds that it never recognized such an order. Then, acknowledging that a statute of the United States authorizing an order of the sort would be valid, the opinion finds there is none. Thus the matter is treated as one of procedure, for Congress has not, if it could, declared by statute the substantive law of a state. After [312 U.S. 1, 12] stating that the decision law of Indiana on the subject appeared not to be settled, and that a cited statute of that State was not in point, the court added that the question was not one of the law of Indiana but of the law of the United States and that the federal statutes by their provisions as to proof in actions at law precluded the application of the Conformity Act. Again, therefore, the opinion recognized that the matter is one of procedure, for both the cited federal statutes, concerning the mode of proof in federal courts, and the Conformity Act, deal solely with procedure.In fine, the decision was only that the making of such an order is regulable by statute, that the federal statutes forbade it, and hence the Conformity Act could not be thought to authorize the practice by reference to and incorporation of state law.In the Stetson case the action was brought in the District Court for New Jersey by a citizen of Pennsylvania, who, while a citizen of New Jersey, had been injured in the latter state. A statute of New Jersey authorized the state courts to order a physical examination of a plaintiff in an action for damages pending therein. The District Court refused to order such an examination on the ground that it lacked power so to do. After a verdict and judgment for plaintiff the defendant appealed to the Circuit Court of Appeals, assigning the refusal as error. That court certified the question, 3 Cir., 104 F. 1004, and this court answered that the District Court had power to order the examination.The court stated that in the Botsford case there was no statute authorizing such an order, but said that here there was a state statute which by the Rules of Decision Act was made a law of the United States and must be given effect in a trial in a federal court. While it is true the court referred to the Rules of Decision Act, R.S. 721, 28 U.S.C.A. 725, and not to the Conformity Act, R.S. 914, 28 U.S.C.A. 724, the [312 U.S. 1, 13] entire discussion goes upon the assumption that the matter is procedural. In any event, the distinction between substantive and procedural law was immaterial, for the cause of action arose and the trial was had in New Jersey. 13In the instant case we have a rule which, if within the power delegated to this court, has the force of a federal statute, and neither the Botsford nor the Stetson case is authority for ignoring it.The remaining case on which petitioner leans is Stack v. New York, etc., R. Co., 177 Mass. 155, 58 N.E. 686, 52 L.R.A. 328, 83 Am.St.Rep. 269, where the court agreed with the view expressed in the Botsford case that common-law practice did not warrant the entry of such an order and said it was for the legislature rather than the courts to alter the practice. But if Rule 35 is within the authority granted, the federal legislature sanctioned it as controlling all district courts.We are thrown back, then, to the arguments drawn from the language of the Act of June 19, 1934. Is the phrase 'substantive rights' confined to rights conferred by law to be protected and enforced in accordance with the adjective law of judicial procedure? It certainly embraces such rights. One of them is the right not to be injured in one's person by another's negligence, to redress infraction of which the present action was brought. The petitioner says the phrase connotes more; that by its use Congress intended that in regulating procedure this court should not deal with important and substantial rights theretofore recognized. Recognized where and by whom? The state courts are divided as to the power in the absence of statute to order a physical examination. 14 In a number such an order is author- [312 U.S. 1, 14] ized by statute or rule. 15 The rules in question accord with the procedure now in force in Canada and England. 16The asserted right, moreover, is no more important than many others enjoyed by litigants in District Courts sitting in the several states, before the Federal Rules of Civil Procedure altered and abolished old rights or privileges and created new ones in connection with the conduct of litigation. The suggestion that the rule offends the important right to freedom from invasion of the person ignores the fact that as we hold, no invasion of freedom from personal restraint attaches to refusal so to comply with its provisions. If we were to adopt the suggested criterion of the importance of the alleged right we should invite endless litigation and confusion worse confounded. The test must be whether a rule really regulates procedure,-the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them. That the rules in question are such is admitted.Finally, it is urged that Rules 35 and 37 work a major change of policy and that this was not intended by Congress. Apart from the fact already stated, that the policy of the states in this respect has not been uniform, it is to be noted that the authorization of a comprehensive system of court rules was a departure in policy, and that the new policy envisaged in the enabling act of 1934 was that the whole field of court procedure be regulated in the interest of speedy, fair and exact determination of the truth. The challenged rules comport with this policy. Moreover, in accordance with the Act, the rules were sub- [312 U.S. 1, 15] mitted to the Congress so that that body might examine them and veto their going into effect if contrary to the policy of the legislature.The value of the reservation of the power to examine proposed rules, laws and regulations before they become effective is well understood by Congress. It is frequently, as here, employed to make sure that the action under the delegation squares with the Congressional purpose. 17 Evidently the Congress felt the rule was within the ambit of the statute as no effort was made to eliminate it from the proposed body of rules, although this specific rule was attacked and defended before the committees of the two Houses. 18 The Preliminary Draft of the rules called attention to the contrary practice indicated by the Botsford case, as did the Report of the Advisory Committee and the Notes prepared by the Com- [312 U.S. 1, 16] mittee to accompany the final version of the rules. 19 That no adverse action was taken by Congress indicates, at least, that no transgression of legislative policy was found. We conclude that the rules under attack are within the authority granted.The District Court treated the refusal to comply with its order as a contempt and committed the petitioner therefor. Neither in the Circuit Court of Appeals nor here was this action assigned as error. We think, however, that in the light of the provisions of Rule 37 it was plain error of such a fundamental nature that we should notice it. 20 Section (b)(2)(iv) of Rule 37 exempts from punishment as for contempt the refusal to obey an order that a party submit to a physical or mental examination. The District Court was in error in going counter to this express exemption. The remedies available under the rule in such a case are those enumerated in Section (b)(2)(i)(ii) and (iii). For this error we reverse the judgment and remand the cause to the District Court for further proceedings in conformity to this opinion.Reversed and remanded.Mr. Justice FRANKFURTER (dissenting).Union Pacific Railway Co. v. Botsford, 141 U.S. 250 , 11 S.Ct. 1000, denied the power of the federal courts in a civil action to compel a plaintiff suing for injury to the person to submit to a physical examination. Nine years later, in Camden & Suburban Railway Co. v. Stetson, 177 U.S. 172 , 20 S.Ct. 617, [312 U.S. 1, 17] the Botsford decision was treated as settled doctrine. The present issue is whether the authority which Congress gave to this Court to formulate rules of civil procedure for the district courts allows displacement of the law of the Botsford case. Stated more particularly, is Rule 35, authorizing such physical examination, valid under the Rules Enabling Act of June 19, 1934, 48 Stat. 1064, 28 U.S.C. 723b, 723c, 28 U.S.C.A. 723b, 723c. It is urged that since this Rule pertains to procedure, it is valid because outside the limitations of that Act, whereby 'said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant'.Speaking with diffidence in support of a view which has not commended itself to the Court, it does not seem to me that the answer to our question is to be found by an analytic determination whether the power of examination here claimed is a matter of procedure or a matter of substance, even assuming that the two are mutually exclusive categories with easily ascertainable contents. The problem seems to me to be controlled by the policy underlying the Botsford decision. Its doctrine was not a survival of an outworn technicality. It rested on considerations akin to what is familiarly known in the English law as the liberties of the subject. To be sure, the immunity that was recognized in the Botsford case has no constitutional sanction. It is amenable to statutory change. But the 'inviolability of a person' was deemed to have such historic roots in Anglo-American law that it was not to be curtailed 'unless by clear and unquestionable authority of law'. In this connection it is significant that a judge as responsive to procedural needs as was Mr. Justice Holmes, should, on behalf of the Supreme Judicial Court of Massachusetts, have supported the Botsford doctrine on the ground that 'the common law was very slow to sanction any viola- [312 U.S. 1, 18] tion of or interference with the person of a free citizen'. Stack v. New York, etc., R. Co., 177 Mass. 155, 157, 58 N.E. 686, 52 L.R.A. 328, 83 Am. St.Rep. 269.So far as national law is concerned, a drastic change in public policy in a matter deeply touching the sensibilities of people or even thier prejudices as to privacy, ought not to be inferred from a general authorization to formulate rules for the more uniform and effective dispatch of business on the civil side of the federal courts. I deem a requirement as to the invasion of the person to stand on a very different footing from questions pertaining to the discovery of documents, pre-trial procedure and other devices for the expeditious, economic and fair conduct of litigation. That disobedience of an order under Rule 35 cannot be visited with punishment as for contempt does not mitigate its intrusion into an historic immunity of the privacy of the person. Of course the Rule is compulsive in that the doors of the federal courts otherwise open may be shut to litigants who do not submit to such a physical examination.In this view little significance attaches to the fact that the Rules, in accordance with the statute, remained on the table of two Houses of Congress without evoking any objection to Rule 35 and thereby automatically came into force. Plainly the Rules are not acts of Congress and can not be treated as such. Having due regard to the mechanics of legislation and the practical conditions surrounding the business of Congress when the Rules were submitted, to draw any inference of tacit approval from non-action by Congress is to appeal to unreality. And so I conclude that to make the drastic change that Rule 35 sought to introduce would require explicit legislation.Ordinarily, disagreement with the majority on so-called procedural matters is best held in silence. Even in the present situation I should be loath to register dissent did [312 U.S. 1, 19] the issue pertain merely to diversity litigation. But Rule 35 applies to all civil litigation in the federal courts, and thus concerns the enforcement of federal rights and not merely of state law in the federal courts.Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice MURPHY agree with these views.Footnotes[ Footnote 1 ] 28 U.S.C.A. following 723c.[ Footnote 2 ] South Bend v. Turner, 156 Ind. 418, 60 N.E. 271, 54 L.R.A. 396, 83 Am.St.Rep. 200; Aspy v. Botkins, 160 Ind.[ Footnote 3 ] Chicago v. McNally, 227 Ill. 14, 81 N.E. 23; Mattice v. Klawans, 312 Ill. 299, 143 N.E. 866; People v. Scott, 326 Ill. 327, 157 N.E. 247.170, 66 N.E. 462; Lake Erie & W.r. Co. v. Griswold, 72 Ind.App. 265, 125 N.E. 783; Valparaiso v. Kinney, 75 Ind.App. 660, 131 N.E. 237.[ Footnote 4 ] 7 Cir., 108 F.2d 415.[ Footnote 5 ] C. 651, 48 Stat. 1064, 28 U.S.C. 723b, 723c, 28 U.S.C.A. 723b, 723c.[ Footnote 6 ] Wayman v. Southard, 10 Wheat. 1, 21; Bank of United States v. Halstead, 10 Wheat. 51, 53; Beers v. Haughton, 9 Pet. 329, 359, 361.[ Footnote 7 ] Wayman v. Southard, supra, 10 Wheat. 42; Bank of the United States v. Halstead, supra, 10 Wheat, 61; Beers v. Haughton, supra, 9 Pet. 359.[ Footnote 8 ] R.S. 721, 28 U.S.C. 725, 28 U.S.C.A. 725.[ Footnote 9 ] Hudson v. Parker, 156 U.S. 277, 284 , 15 S.Ct. 450, 453; Venner v. Great Northern R. Co., 209 U.S. 24, 35 , 28 S.Ct. 328, 331; Davidson Bros. Marble Co. v. United States ex rel. Gibson, 213 U.S. 10, 18 , 29 S.Ct. 324, 326; Meek v. Centre County Banking Co., 268 U.S. 426, 434 , 45 S.Ct. 560, 563.[ Footnote 10 ] R.S. 914, 28 U.S.C. 724, 28 U.S.C.A. 724.[ Footnote 11 ] Supra, note 8.[ Footnote 12 ] The opinion does not so state, but the record filed in this court so shows.[ Footnote 13 ] As above pointed out, if the matter is one of substantive law, R.S . 721 requires the application of the law of Indiana, which authorizes an order for examination.[ Footnote 14 ] See Wigmore on Evidence, 3d Ed., 2220, note 13.[ Footnote 15 ] See Notes to the Rules of Civil Procedure, printed by the Advisory Committee March 1938, p. 32.[ Footnote 16 ] Wigmore on Evidence, 3d Ed., 2220, note 13; 31 & 32 Vict. c. 119 , 26.[ Footnote 17 ] An analogy is found in the organic acts applicable to some of the territories, before their admission to statehood, which provided that laws passed by the territorial legislature should be valid unless Congress disapproved. 5 of the Ordinance of 1787; see Pease v. Peck, 18 How. 595. Territory of Florida, 5 of the act of March 30, 1822 (3 Stat. 655); territory of Louisiana, 4 of the act of March 26, 1804 (2 Stat. 284), and 3 of the act of March 3, 1805 (2 Stat. 331); territory of Minnesota, 6 of the Act of March 3, 1849 (9 Stat. 405); territory of New Mexico, 7 of the act of September 9, 1850 (9 Stat. 449); territory of Oregon, 6 of the act of August 14, 1848 (9 Stat. 325, 326); territory of Utah, 6 of the act of September 9, 1850 (9 Stat. 455); territory of Washington, 6 of the act of March 2, 1853 (10 Stat. 175); territory of Wisconsin, 6 of the act of April 20, 1836 (5 Stat. 12, 13). Similar provisions are now applicable to Alaska, Puerto Rico, the Virgin Islands and the Philippines. 48 U.S.C. 90, 826, 1405o, 1054, 48 U.S.C.A. 90, 826, 1405o, 1054.Cf. the provisions for lying over before Congress in 407 of the act of March 3, 1933, 47 Stat. 1519, and 5 of the Reorganization Act of 1939, 53 Stat. 562, 5 U.S.C.A. 133d.[ Footnote 18 ] Hearings before the Committee on the Judiciary, House of Representatives, 75th Cong., 3rd Sess., pp. 117, 141; Hearings before a Subcommittee of the Committee on the Judiciary, U.S. Senate, 75th Cong., 3rd Sess., pp. 36, 37, 39, 51.[ Footnote 19 ] Preliminary Draft (May, 1936) of Rules of Civil Procedure for the District Courts of the United States and the Supreme Court of the District of Columbia, Advisory Committee on Rules for Civil Procedure, p. 71; Notes to the Rules of Civil Procedure for the District Courts of the United States (March, 1938), p. 32.[ Footnote 20 ] Supreme Court Rule 27, par. 6, 28 U.S.C.A. following section 354; Mahler v. Eby, 264 U.S. 32, 45 , 44 S.Ct. 283, 288; Kessler v. Strecker, 307 U.S. 22, 34 , 59 S.Ct. 694, 700.__________Hanna v. Plumer380 U.S. 460 (1965)MR. CHIEF JUSTICE delivered the opinion of the Court.The question to be decided is whether, in a civil action where the jurisdiction of the United States district court is based upon diversity of citizenship between the parties, service of process shall be made in the manner prescribed by state law or that set forth in Rule 4(d)(1) of the Federal Rules of Civil Procedure.On February 6, 1963, petitioner, a citizen of Ohio, filed her complaint in the District Court for the District of Massachusetts, claiming damages in excess of $10,000 for personal injuries resulting from an automobile accident in South Carolina, allegedly caused by the negligence of one Louise Plumer Osgood, a Massachusetts citizen deceased at the time of the filing of the complaint. Respondent, Mrs. Osgood's executor and also a Massachusetts citizen, was named as defendant. On February 8, service was made by leaving copies of the summons and the complaint with respondent's wife at his residence, concededly in compliance with Rule 4(d)(1), which provides:"The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:""(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . ."Respondent filed his answer on February 26, alleging, inter alia, that the action could not be maintained because it had been brought "contrary to and in violation of the provisions of Massachusetts General Laws (Ter.Ed.) Chapter 197, Section 9." That section provides:"Except as provided in this chapter, an executor or administrator shall not be held to answer to an action by a creditor of the deceased which is not commenced within one year from the time of his giving bond for the performance of his trust, or to such an action which is commenced within said year unless before the expiration thereof the writ in such action has been served by delivery in hand upon such executor or administrator or service thereof accepted by him or a notice stating the name of the estate, the name and address of the creditor, the amount of the claim and the court in which the action has been brought has been filed in the proper registry of probate. . . ."Mass.Gen.Laws Ann., c. 197, § 9 (1958). On October 17, 1963, the District Court granted respondent's motion for summary judgment, citing Ragan v. Merchants Transfer & Warehouse Co.,337 U. S. 530, and Guaranty Trust Co. of New York v. York,326 U. S. 99, in support of its conclusion that the adequacy of the service was to be measured by § 9, with which, the court held, petitioner had not complied. On appeal, petitioner admitted noncompliance with § 9, but argued that Rule 4(d)(1) defines the method by which service of process is to be effected in diversity actions. The Court of Appeals for the First Circuit, finding that "[r]elatively recent amendments [to § 9] evince a clear legislative purpose to require personal notification within the year," concluded that the conflict of state and federal rules was over "a substantive, rather than a procedural, matter," and unanimously affirmed. 331 F.2d 157. Because of the threat to the goal of uniformity of federal procedure posed by the decision below, we granted certiorari, 379 U.S. 813.We conclude that the adoption of Rule 4(d)(1), designed to control service of process in diversity actions, neither exceeded the congressional mandate embodied in the Rules Enabling Act nor transgressed constitutional bounds, and that the Rule is therefore the standard against which the District Court should have measured the adequacy of the service. Accordingly, we reverse the decision of the Court of Appeals.The Rules Enabling Act, 28 U.S.C. § 2072 (1958 ed.), provides, in pertinent part:"The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts of the United States in civil actions.""Such rules shall not abridge, enlarge or modify any substantive right, and shall preserve the right of trial by jury. . . ."Under the cases construing the scope of the Enabling Act, Rule 4(d)(1) clearly passes muster. Prescribing the manner in which a defendant is to be notified that a suit has been instituted against him, it relates to the "practice and procedure of the district courts." Cf. Insurance Co. v. Bangs,103 U. S. 435, 103 U. S. 439."The test must be whether a rule really regulates procedure -- the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them."Sibbach v. Wilson & Co.,312 U. S. 1, 312 U. S. 14. [Footnote 4] In Mississippi Pub. Corp. v. Murphree,326 U. S. 438, this Court upheld Rule 4(f), which permits service of a summons anywhere within the State (and not merely the district) in which a district court sits:"We think that Rule 4(f) is in harmony with the Enabling Act. . . . Undoubtedly, most alterations of the rules of practice and procedure may and often do affect the rights of litigants. Congress' prohibition of any alteration of substantive rights of litigants was obviously not addressed to such incidental effects as necessarily attend the adoption of the prescribed new rules of procedure upon the rights of litigants who, agreeably to rules of practice and procedure, have been brought before a court authorized to determine their rights. Sibbach v. Wilson & Co.,312 U. S. 1, 312 U. S. 11-14. The fact that the application of Rule 4(f) will operate to subject petitioner's rights to adjudication by the district court for northern Mississippi will undoubtedly affect those rights. But it does not operate to abridge, enlarge or modify the rules of decision by which that court will adjudicate its rights."Id. at 326 U. S. 445-446.Thus, were there no conflicting state procedure, Rule 4(d)(1) would clearly control. National Equipment Rental, Limited v. Szukhent,375 U. S. 311, 375 U. S. 316. However, respondent, focusing on the contrary Massachusetts rule, calls to the Court's attention another line of cases, a line which -- like the Federal Rules -- had its birth in 1938. Erie R. Co. v. Tompkins,304 U. S. 64, overruling 41 U. S. Tyson, 16 Pet. 1, held that federal courts sitting in diversity cases, when deciding questions of "substantive" law, are bound by state court decisions as well as state statutes. The broad command of Erie was therefore identical to that of the Enabling Act: federal courts are to apply state substantive law and federal procedural law. However, as subsequent cases sharpened the distinction between substance and procedure, the line of cases following Erie diverged markedly from the line construing the Enabling Act. Guaranty Trust Co. of New York v. York,326 U. S. 99, made it clear that Erie-type problems were not to be solved by reference to any traditional or common sense substance-procedure distinction:"And so the question is not whether a statute of limitations is deemed a matter of 'procedure' in some sense. The question is . . . does it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court?"326 U.S. at 326 U. S. 109.* * *Erie and its offspring cast no doubt on the long recognized power of Congress to prescribe housekeeping rules for federal courts even though some of those rules will inevitably differ from comparable state rules. Cf. Herron v. Southern Pacific Co.,283 U. S. 91."When, because the plaintiff happens to be a nonresident, such a right is enforceable in a federal, as well as in a State, court, the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic."Guaranty Trust Co. of New York v. York, supra, at 326 U. S. 108; Cohen v. Beneficial Indus. Loan Corp.,337 U. S. 541, 337 U. S. 555. Thus, though a court, in measuring a Federal Rule against the standards contained in the Enabling Act and the Constitution, need not wholly blind itself to the degree to which the Rule makes the character and result of the federal litigation stray from the course it would follow in state courts, Sibbach v. Wilson & Co., supra, at 312 U. S. 13-14, it cannot be forgotten that the Erie rule, and the guidelines suggested in York, were created to serve another purpose altogether. To hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the mode of enforcing state-created rights would be to disembowel either the Constitution's grant of power over federal procedure or Congress' attempt to exercise that power in the Enabling Act. Rule 4(d)(1) is valid, and controls the instant case.Reversed.
[1] http://supreme.justia.com/cases/federal/us/531/457/case.html[2] 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.[3]None of the sections of the CAA in which the District of Columbia Circuit has found authority for the EPA to consider costs shares § 109(b)(1)’s prominence in the overall statutory scheme. See, e. g., Michigan v. EPA, 213 F.3d 663, 678-679 (CADC 2000); George E. Warren Corp. v. EPA, 159 F.3d 616, 623-624 (CADC 1998); Natural Resources Defense Council, Inc. v. EPA, 824 F.2d 1146, 1154-1163 (CADC 1987) (en bane).[4]Respondents contend that this advice is required to be included in the NAAQS rulemaking record-which, if true, would suggest that it was relevant to the standard-setting process. But the provision respondents cite for their contention, 42 U. S. C. § 7607(d)(3), requires only that “pertinent findings, recommendations, and comments by the Scientific Review Committee” be included. The Committee’s advice concerning certain aspects of “adverse public health ... effects” from various attainment strategies is unquestionably pertinent; but to say that Committeegenerated cost data are pertinent is to beg the question. Likewise, while “all written comments” must be placed in the docket, § 7607(d)(4)(B)(i), the EPA need respond only to the “significant” ones, § 7407(d)(6)(B); comments regarding cost data are not significant if cost data are irrelevant.[5]Respondents scarcely mention in their arguments the secondary NAAQS required by § 109(b)(2), 42 U. S. C. § 7409(b)(2). For many of the same reasons described in the body of the opinion, as well as the text of § 109(b)(2), which instructs the EPA to set the standards at a level “requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air”(emphasis added), we conclude that the EPA may not consider implementation costs in setting the secondary NAAQS.[6]Respondents’ speculation that the EPA is secretly considering the costs of attainment without telling anyone is irrelevant to our interpretive inquiry. If such an allegation could be proved, it would be grounds for vacating the NAAQS, because the Administrator had not followed the law. See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837,842-843 (1984); Atlantic Mut. Ins. Co. v. Commissioner, 523 U. S. 382, 387 (1998). It would not, however, be grounds for this Court’s changing the law.[7]See, e. g., Touby v. United States, 500 U. S. 160, 165 (1991); United States v. Shreveport Grain & Elevator Co., 287 U. S. 77, 85 (1932); J. W Hampton, Jr., & Co. v. United States, 276 U. S. 394, 407 (1928); Field v. Clark, 143 U. S. 649, 692 (1892).[8]See Mistretta v. United States, 488 U. S. 361, 372 (1989) (“[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society ... Congress simply cannot do its job absent an ability to delegate power ... “). See also Loving v. United States, 517 U. S. 748, 758 (1996) (“[The nondelegation] principle does not mean ... that only Congress can make a rule of prospective force”); 1 K. Davis & R. Pierce, Administrative Law Treatise § 2.6, p. 66 (3d ed. 1994) (“Except for two 1935 cases, the Court has never enforced its frequently announced prohibition on congressional delegation of legislative power”).[9] http://www.pbs.org/tpt/constitution-usa-peter-sagal/federalism/[10] http://www.acslaw.org/publications/books/keeping-faith-with-the-constitution[11] http://www.acslaw.org/sites/default/files/West_-_Constitutional_Fidelity_and_Democratic_Legitimacy.pdf[12] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=929636[13] http://supreme.justia.com/cases/federal/us/531/457/case.html[14]http://www.ussc.gov/[15] http://nationalparoleresourcecenter.org/[16] http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=PLAW
[17] http://en.wikipedia.org/wiki/United_States_Statutes_at_Large
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