were to have adopted these guidelines as recommended to it by an advisory body. To say that there is a due process difference between having Congress do the direct legislating or adopting on the one hand, and Congress handing the job over to a trusted subordinate group of delegates on the other, seems to me to be wholly unpersuasive.
The defendant contends that the first option or set of options -- Congress legislating or adopting the guidelines -- has the virtue of accountability, which the second -- the articulation of guidelines by the Sentencing Commission -- does not. But accountability is not a due process ingredient. Accountability is another way of talking about delegation. When delegation is said to be "running riot," to use Cardozo's term in Schechter, the constitutional deficiency is that rules and substantive norms are being established by a body that is not accountable, by a group of people to whom Congress turned over some authority without giving sufficient direction. That is a question that sounds in delegation.
It is settled that the delegation process involved in the establishment of the Sentencing Commission under the broad principles articulated by Congress in the authorizing legislation was properly accomplished. The Court of Appeals in Frank has made that quite clear, and it seems to me as an independent matter that the principles announced by Congress in establishing the Sentencing Commission and putting it to work were at least as amply directive as the directions that Congress has given in many other important areas. They compare, if anything, favorably with the directives of Congress in the Rules Enabling Act, under which the Supreme Court has promulgated rules of civil procedure, Act of June 19, 1934, ch. 651, 48 Stat. 1064 (codified as amended at 28 U.S.C. § 2072) (cf., as to rules of criminal procedure, 18 U.S.C. § 3771).
Though it is often forgotten, the fact is that Congress has for a long time delegated substantive rule-making authority, which results in the formulation of norms of behavior enforceable by the processes of the criminal law, with virtually no directive guidance at all, in the Assimilative Crimes Act. 18 U.S.C. § 13. There, Congress has adopted as the governing criminal law in federal enclaves in the United States the criminal law adopted from time to time by the legislatures of the states in which those enclaves are located. As and when the legislature of Pennsylvania changes the criminal law of Pennsylvania, that is reflected in a shift in the criminal law governing federal enclaves here in this Commonwealth. That pattern is repeated throughout the United States. The Supreme Court of the United States, over dissent to be sure, has affirmed the constitutionality of that form of adoptive, or, it would seem to me, delegative, law-making by Congress through the agency of another body. United States v. Sharpnack, 355 U.S. 286, 2 L. Ed. 2d 282, 78 S. Ct. 291 (1958). In that instance, delegation is not even to a body that is part of the United States Government.
II. Separation of Powers
So, I have no trouble with the delegation involved in this case. Nor do I have any trouble with the assertion that the separation of powers has been infringed upon due to creation in the judicial branch of a body of seven, three of whose members are judges, and all of whom are removable for good cause by the President. Removal is only from the Sentencing Commission, not from judicial office. And I find it fanciful to suppose that any federal judge would feel that he or she would want to avoid executive displeasure by conforming to a particular executive position at the expense of his or her own conviction, simply to avoid the discomfort of being removed from the Sentencing Commission. Executive removal authority does not go to the judicial position; and that is, where the judge's integrity as an independent official is focused, as is fully explained in the Federalist Papers.
To the extent that we have any history of the operations of this Sentencing Commission, it is a history that refutes the defendant's concerns. The defendant supposes the possibility of judicial members of the Commission fearful of losing their Commissionerships if they opposed the executive's position on some highly controversial issue. The facts are to the contrary, if we can take judicial notice (perhaps I should call it newspaper notice) that the Commission disagreed with positions urged by the then-Attorney General on behalf of the administration with respect to the death sentence. I have no recollection of anyone on the Commission being removed.
To the extent that there are or may be questions about whether the Sentencing Commission should properly be labeled a body within the judicial branch, I do not see these as issues of large consequence. In any event, I regard them as issues that do not go to the constitutional integrity of the Sentencing Commission and the Commission's product, the guidelines. It is conceivable that the effort of the Congress to designate the Commission as an agency in the judicial branch was to that extent erroneous and that, if a proper controversy presented the issue, a court would conclude that the Commission was more properly one to be characterized as belonging in the executive or legislative branch. Alternatively, it is conceivable under some context, that if the executive were to seek to remove a judge or a nonjudge member of the Sentencing Commission, the fact that the Commission was established by the Congress in the judicial branch would serve as a limitation on the executive's removal authority. Those issues I do not regard as before me or requiring resolution today, and I put them aside. I think they lie beyond the range of problems that this defendant has standing to invoke in her challenge to the guidelines.
In sum, I conclude that the Sentencing Commission was validly established, and that the guidelines are a valid product of the Commission. With that in mind, I must impose sentence within the framework of the guidelines because they govern my determination.
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