Constitutionality of a Judicial Review Provision Providing for Automatic Affirmance of Agency Decisions
The N ortheast Interstate Low-Level R adioactive W aste Management Compact would establish a C om m ission whose final administrative decisions would be subject to review in the United States Court o f Appeals for the D istrict o f Colum bia Circuit. A proposed amendment to a bill granting the consent of Congress to the Com pact provides that if review is sought of the C om m ission’s decision relative to the designation o f a “host state” for a regional radioactive w aste disposal facility and the court o f appeals does not rule within ninety days after the petition for review has been filed, the Commission’s decision “shall be deemed to be affirmed.”
This provision raises serious constitutional problems that implicate the doctrine of separation of powers. Although Congress has broad authority to prescribe rules concerning judicial prac tice, procedure, jurisdiction, and rem edies and to establish the substantive law that governs judicial decisions, the proposed am endm ent exceeds this authority by effectively exercising the core judicial function of deciding particular cases.
December 13, 1985
Letter for th e C h a ir m a n , S e n a t e C o m m it t e e o n t h e J u d ic ia r y
This responds to your request that we review the constitutionality of a proposed amendment to the judicial review provisions of S. 1798, a bill “[t]o grant the consent of the Senate to the Northeast Interstate Low-Level Radioac tive Waste Management Compact.” The amendment would set a ninety-day time limit for judicial review of certain administrative decisions made by the Commis sion established under the Compact, and would mandate that the decision of the Commission be “deemed affirmed” if the court did not rule within that time. As we discuss below, the proposed amendment raises serious constitutional problems. The purpose of S. 1798 is to grant the consent of Congress, pursuant to the Compact Clause, U.S. Const, art. I, § 10, cl. 3,1and § 4(a)(2) of the Low-Level Radioactive Waste Policy Act, 42 U.S.C. § 2021d(a)(2), to the Northeast Interstate Low-Level Radioactive Waste Management Compact. The Compact, which was negotiated by Connecticut, New Jersey, Delaware, and Maryland, implements a regional approach to the management and disposal of low-level radioactive waste by providing a mechanism for establishment of regional waste disposal facilities and by granting to party states the right to deposit wastes at those facilities. The Compact establishes the Northeast Interstate Low-Level Radioactive Waste Commission (Commission), composed of mem bers appointed by the party states. Among other responsibilities, the Commis sion may designate “host states” that must establish regional disposal facilities 1 The C om pact C lause provides lhat “ [n ]o State shall, w ithout the consent of C ongress, . . . enter into any A greem ent o r C om pact w ith another S ta te .”
118 to accept wastes generated by other party states, if the states fail to pursue voluntarily the development of such facilities. Art. IV(i)(9).2 The Compact establishes jurisdiction in the federal courts for suits arising from actions of the Commission. Jurisdiction is provided in the United States District Court for the District of Columbia for “all actions brought by or against the Commission.” Any actions initiated in a state court “shall be removed” to federal court. Art. IV(n). In addition, the United States Court of Appeals for the District of Columbia Circuit is given jurisdiction “to review the final adminis trative decisions of the Commission.” Art. IV(o).3 Persons aggrieved by a final administrative decision of the Commission may obtain review of the decision by filing a petition for review within sixty days after the Commission’s final decision. Art. IV(o)(l). On review, the court of appeals is precluded from substituting its judgment for that of the Commission “as to the decisions of policy or weight of the evidence on questions of fact,” but may remand the case for further proceedings if it finds that the petitioner has been aggrieved because the findings, inferences, conclusions, or decisions of the Commission are: (a) in violation of the Constitution of the United States; (b) in excess of the authority granted to the Commission under the Compact; (c) procedurally defective “to the detriment of any person;” or (d) arbitrary, capricious, or an abuse or clearly unwarranted exercise of discretion. Art. IV(o)(3). As drafted, the Compact provides that the court of appeals “shall accord . . . an expedited review” to any Commission decision “relative to the designation of a host state.” Art. IV(o)(2). The proposed amendment you have asked us to review would expand on the requirement for expedited review by providing as follows: “[I]f the Court does not rule within 90 days after a petition for review has been filed, the Commission’s decision shall be deemed to be affirmed.” We assume that the purpose of this amendment is to ensure that the court of appeals will expeditiously consider and rule on the designation of host states respon sible for construction and operation of regional disposal facilities, so that the construction of such facilities can proceed as promptly as possible.4 The effect 2 The C om m ission also w ould exercise several other responsibilities, including approving the export or im port o f hazardous wastes not otherw ise perm issible under the Com pact, accepting applications o f other states to becom e m em bers o f the Com pact, adopting a regional managem ent plan for the disposal of low -level radioactive w astes, and overseeing im plem entation o f the Com pact. The Com m ission is given authority to hold hearings and to require testim ony or o th er inform ation from the party states, to intervene in ju dicial or adm inistrative proceedings, and to im pose sanctions on party states for violation of the Com pact, including revocation o f m em bership. 3 The Com pact does not define “final adm inistrative decisions,” nor does it state expressly that jurisdiction in the court o f appeals to review such decisions is exclusive o f the district court jurisdiction to review “ail actions brought by or against the C om m ission.” It does state, however, that the provision granting jurisdiction to the district courts “shall not alter the jurisd ictio n o f the U nited States C ourt of A ppeals for the D istrict of C olum bia C ircuit to review the final adm inistrative decisions o f the Com m ission.” Art. IV(n). 4 Because the Com pact negotiated by the states does not include this provision, the proposed am endm ent would in effect be a condition imposed by Congress on its consent to the Compact. Congress may attach binding conditions to its consent to the form ation o f an interstate com pact, provided such conditions are otherw ise within C ongress’ authority and not in contravention o f any constitutional lim its. See , e g., Petty v. Tennessee-Mo. Bridge Comm 'n, 359 V S. 275 (1952); Tobin v. United States, 306 F.2d 270 (D.C. Cir. 1962), cert, denied , 371 U.S. 902 (1963). A state that objects to such conditions may, o f course, withdraw from an interstate com pact in accordance with its terms.
119 of this amendment would be to establish an outside limit of ISO days (sixty days for filing the petition for review and ninety days for the court’s ruling) from the time of the Commission’s determination to the end of review by the court of appeals. The amendment, however, would not just limit the time available to the court of appeals to rule on a petition for review; it would also effectively “affirm” any designation decision of the Commission not ruled on by the court within that time, regardless of whether the court had in fact reviewed the petition and determined that affirmance was warranted under the standards set forth in the Compact. To our knowledge, this provision is virtually unprecedented. We are not aware of any comparable provision in statutes authorizing judicial review of administrative actions. The closest analogy we have found is the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, which requires that federal criminal defendants be charged and tried within certain time limits.5 If the time limits are not met, the charges against the defendant must be dismissed, either with or without prejudice.6 The constitutionality of the Speedy Trial Act was upheld by the Fourth Circuit in U nited States v. Brainer, 691 F.2d 691 (4th Cir. 1982). As discussed below, however, we believe that the purpose and effect of the Speedy Trial Act differ significantly from the purpose and effect of the proposed amendment, and therefore that the Brainer decision does not answer satisfacto rily the difficult constitutional questions presented by the amendment. Our primary concern is that the proposed amendment would violate the constitutionally mandated separation of powers between the Legislative and Judicial Branches. “Basic to the constitutional structure established by the Framers was their recognition that ‘the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.’” N orthern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57 (1982) (plurality opinion) (quoting The Federalist No. 47, at 300 (J. Madison) (H. Lodge ed. 1888)). Accordingly: [t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legisla tive, Executive, and Judicial, to assure as nearly as possible, that 5 T he Speedy T rial A ct requires, inter alia, that any inform ation or indictm ent charging an individual with an offense be filed w ithin 30 days from the d ate o f arrest, and th at the trial be com m enced within 70 days of the filing o f the inform ation o r indictment. 18 U.S.C. § 3161(a), (b), (c). The statute excludes from the com putation o f tim e several types of delay, including: delays resulting from other proceedings concerning the defendant; delays d uring w hich prosecution is deferred by agreem ent w ith the defendant; delays resulting from the absence o r unavailability of the d efendant o r an essential w itness; delays resulting from the m ental incom petence o r physical inability of the d efendant to stand trial; delays resulting from the treatment o f the defen d an t under 28 U .S.C . $ 2902; and d elay s occasioned by the jo inder o f the defendant w ith a codefendant as to w hom the tim e fo r trial has not run. 18 U .S.C . § 3 1 6 1 (h )(l)-(7 ). Also excluded are delays resulting from a con tin u an ce granted by any ju d g e “if the ju d g e granted such continuance on the basis o f his findings that the ends o f ju stic e served by tak in g such actio n outw eigh the best interest o f the public and the defendant in a speedy trial.” Id. § 3161(h)(8)(A ). 6 In determ in in g w hether to dismiss w ith o r w ithout p rejudice, the court m ust consider three factors: the seriousness o f the offense; the facts and circum stances o f the case that led to the dism issal; and the im pact o f a rep ro secu tio n on the adm inistration o f the Speedy Trial A ct and on the adm inistration o f justice. Id. § 3162(a)(2).
120 each branch of government would confine itself to. its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted. INS v. Chadha, 462 U.S. 919, 951 (1983); see also Buckley v. Valeo, 424 U.S. 1, 122 (1976). The Constitution vests all federal judicial power “in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const, art. Ill, § 1. Thus, “our Constitution unambiguously enunciates a fundamental principle that the ‘judicial Power of the United States’ must be reposed in an independent Judiciary.” Northern Pipeline, 458 U.S. at 60 (plurality opinion). As Alexander Hamilton wrote in The Federalist, it is necessary for the Judiciary to remain “truly distinct from the Legislature and the Executive. For I agree that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’” The Federalist No. 78, at 466 (C. Rossiter ed. 1961) (citation omitted). Thus, it is a violation of the separation of powers for the Legislative and Executive Branches to exercise judicial power, just as it is unconstitutional for the Judiciary to engage in lawmaking or executive functions. The core of the judicial power, which the Legislative and Executive Branches may not invade, is the rendering of decisions in court cases, that is, the “application of principles of law or equity to [the] facts” of a particular case. Vermont v. N ew York, 417 U.S. 270, 277 (1974); see also Williams v. United States, 289 U.S. 553,578 (1933); United States v. Klein, 80 U.S. (13 Wall.) 128 (1872); M u rray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284 (1856). Certainly Congress has the constitutional authority to enact laws establishing the framework within which judicial decisions must be made. It has broad authority to prescribe rules of practice and procedure,7 to define and limit jurisdiction,8 and to limit remedies available to litigants.9 In addition, Congress prescribes the substantive law that governs judicial deci sions.10 But once that framework has been established, only the courts them selves can render the actual decisions. Separation of powers questions regarding the exercise of the judicial power have frequently arisen in other contexts, such as cases concerning the powers of non-Article III courts. See Northern Pipeline, 458 U.S. at 63-76 (plurality opinion). The amendment discussed here, however, presents a different — and as we have said, a virtually unique — separation of powers question. Under the proposed amendment, if the court of appeals failed to rule on a petition for 1 See, e.g., Hanna v. Plumer, 380 U.S. 460, 472 (1965); Palermo v. United States, 360 U.S. 343, 353 n .l 1 (1959); Sibbach v. Wilson & Co., 312 U.S. 1, 9 (1941); Wayman v. Southard, 23 U.S. (10 W heat.) 1, 43 (1825). 8 See, e.g., Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845). 9See, e.g., Yakus v. United States, 321 U.S. 414 (1944); Lockerty v. Phillips, 319 U.S. 182 (1943); L auf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938). 10See, e.g., Vandenbark v. Owens III. Glass Co., 311 U.S. 538 (1941); Carpenter v. Wabash Ry., 309 U.S. 23 (1940); United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 102 (1801).
121 review within the prescribed time limit, the Commission’s decision would “be deemed to be affirmed.” Such an affirmance would be tantamount to a judg ment of the court of appeals and would accordingly have a legal status very different from a mere decision of the Commission.11 Such an affirmance would plainly represent an exercise of the core judicial function of deciding cases. Yet it would derive not from any action taken by the Judiciary, but from an automatic decisionmaking mechanism created by legislative enactment. There fore, in enacting this amendment, Congress would effectively be creating a mechanical substitute to do the work of the court of appeals. Because of the novelty of the proposed amendment and the consequent lack of judicial author ity addressing the constitutionality of similar measures, any judgment about the amendment’s constitutionality must proceed from first principles relating to the separation of powers. Nevertheless, we believe that this measure would be unconstitutional. We do not believe our conclusion is inconsistent with the Fourth Circuit’s decision in U nited States v. B rainer , holding that the time constraints and dismissal sanction of the Speedy Trial Act do not violate the separation of powers. The B rainer court assumed that “the application of existing law to the facts of a case properly before the courts is a judicial function which the legislature may not constitutionally usurp.” 691 F.2d at 695. But the court analogized the challenged provisions of the Speedy Trial Act to:
the host of other procedural requirements of unquestioned valid ity by which Congress regulates the courts of its creation — such measures as the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Ap pellate Procedure, the Federal Rules of Evidence, and statutes prescribing who may sue and where and for what.
Id. at 696. The court added that “[s]tatutes of limitation provide perhaps the closest analogy.” Id.
11 In general, an affirm ance by the court o f appeals o f a final adm inistrative decision w ould bar relitigation o f (he sam e claim s u n d er the doctrines o f re s judicata and collateral estoppel. Because o f the preclusive effect o f an “affirm an ce,” it is possible that an individual who had sought judicial review could m ount a due process challenge to th e ju d ic ia l review provisions. C ongress m ay, o f course, preclude or lim it judicial review in cases involving statutory rights. See, e.g., Morris v. Cressette, 432 U .S. 491 (1977); Weinberger v. Salfi , 422 U.S. 749, 761-62 (1975); Johnson v. Robison, 415 U .S. 361 (1974); see generally Abbott Laboratories v. Gardner , 387 U.S. 136, 140 (1967). An absolute bar against ju d ic ia l review o f constitutional claim s, how ever, would raise difficult constitutional questions th at have not been fully resolved by the Suprem e C ourt. See , e.g., Weinberger v. Salfi, 422 U.S. at 762 (statin g that an interpretation that absolutely precluded review o f constitutional claim s “w ould ijave raised a serio u s constitutional question o f th e validity o f the statute” ); Briscoe v Beli, 432 U.S. 404,414—15 (1977) (upholding absolute preclusion o f ju d icial review o f A ttorney G eneral’s determ ination under the V oting R ights A ct as w ithin Congress' sp ecific pow er to enforce the Fourteenth and Fifteenth Amendments). T hus, alth o u g h C ongress could preclude an y ju d icial review o f Com m ission determ inations on statutory grounds and leave to the original jurisd ictio n o f the district courts any constitutional challenges to such determ inations, the proposed amendment does not pursue this course. Rather, the practical effect o f an “affirm an ce,” given th e operation of res ju d icata, could well be to c ut o ff an individual’s right to litigate constitu tio n al issues, w hich would, as w e have said, raise d ifficult constitutional questions.
122 Whatever the merits of these inexact analogies may be in the context of the Speedy Trial Act, they have no force here. For example, we see no meaningful comparison for separation of powers purposes between a statute of limitations, which bars a party from bringing suit after the passage of a specified period of time, and the proposed amendment, which may result in the rendering by extra judicial means of a decision in a case that is properly before the court of appeals. A statute of limitations, unlike the proposed amendment, does not create an automatic decisionmaking mechanism to take the place of a court. A better rationale for the result in Brainer is that mandatory dismissal under the Speedy Trial Act is necessary to remedy a violation of the criminal defendant’s statutory right to a speedy trial — a right that has roots in the Sixth Amendment and that plays an important role in safeguarding the accuracy of the trial process. As the Supreme Court has recognized in cases involving the Sixth Amendment speedy trial guarantee, dismissal of the action is really “the only possible remedy” for deprivation of a right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 522 (1972).12 The proposed amendment, by contrast, does not appear designed to protect any particular substantive right (let alone any constitutional right), for it mandates the automatic affirmance of the Commis sion no matter what the Commission has decided. Although the proposed amendment demonstrates Congress’ desire to ensure expeditious review of the Commission’s designation decisions, affirmance of such decisions cannot be viewed in any sense as a “remedy” to redress injury to other parties from delay in completion of judicial review. It is not at all clear, for example, that parties who support the Commission’s decision would necessarily be injured by any further delay in review, or that affirmance of the decision would alleviate any such injury. Moreover, under the Speedy Trial Act, the court has discretion to dismiss the case either with or without prejudice, based on the court’s evaluation of the reasons for, and effect of, the delay in the particular case. The choice whether to give the dismissal preclusive effect is therefore left to the courts, and the courts are required to conduct the sort of factfinding that is at the core of the judicial function. No such latitude is given the court of appeals under the proposed amendment; regardless of the circumstances and the merits of the petition for review, the Commission’s decision is automatically deemed to be affirmed once the ninety-day period has run. In Brainer, the court also considered a separate constitutional challenge to the Speedy Trial Act based on the time limits imposed by the Act — that those
12 In Strunk v. United States , 412 U.S. 4 3 4 ,4 3 8 -4 0 (1973), the C ourt explained: By definition, such denial is unlike som e o f the other guarantees o f the Sixth A mendment. For exam ple, failure to afford a public trial, an impartial jury, notice o f charges, or com pulsory service can ordinarily be cured by providing those guaranteed rights in a new trial. T he speedy trial guarantee recognizes that a prolonged delay may subject the accused to an em otional stress that can be presum ed to result in the ordinary person from uncertainties in the prospect o f facing public trial o r o f receiving a sentence longer than, o r consecutive to, the one he is presently serving — uncertainties that a prom pt trial re m o v e s.. . . In light o f the policies w hich underlie the right to a speedy trial, dism issal must rem ain, as Barker noted, “the only possible rem edy."
123 time limits, in and of themselves, “intrude upon the zone of judicial self administration to such a degree as to ‘prevent[ ] the [Judiciary] from accom plishing its constitutionally assigned functions.’” 691 F.2d at 698 (quoting Nixon v. A dm inistrator o f Gen. Servs., 433 U.S. 425, 443 (1977)). Although expressing some doubt about the existence and scope of the Judiciary’s inher ent power to administer its own docket, the court concluded that the Speedy Trial Act did not unduly intrude upon that power. Id. at 698. In reaching that conclusion, however, the court cited the considerable flexibility provided by the Act, including the ability of the courts to dismiss an action without preju dice, the exclusion of certain common types of delay from the time limit, and the authority of the courts to grant continuances, upon certain conditions, if “the ends of justice . . . outweigh the best interests of the public and the defendant in a speedy trial.” Id. There is no such flexibility built into the proposed amendment. Moreover, it may well be unreasonable in particular cases to require that the entire process of appellate decisionmaking be completed within ninety days. Ninety days is less than the time generally allowed under the Federal Rules of Appellate Procedure just for briefing a case.13 We note that at the present time in the District of Columbia Circuit, the average case is not decided until almost seven months after the last brief is filed in the case.14 We do not believe that statutes prescribing a time limit for judicial decisions in particular types of cases are necessarily unconstitutional. See, e.g., 28 U.S.C. § 1826(c) (imposing thirty-day limit for disposition of appeals under recalci trant witness statute).15 As the court noted in Brainer, the separation of powers inquiry must focus on the extent to which such time limits actually prevent the Judiciary from accomplishing its constitutionally assigned functions and on the justification for legislative intervention.16 Without knowing how the time limit in question here would affect the ability of the District of Columbia Circuit to conduct its business, and without additional information about the need for and
13 U nder the A ppellate R ules, the record m u st be filed w ithin 4 0 days a fte r service o f the petition for review; the appellant m u st file h is b rie f within 40 d a y s after filing o f th e record; the appellee m ust file his b rief w ithin 30 days a fter service o f the appellant's b rief; and the appellant has 14 days a fter service o f the appellee's brief to file a reply. See Fed. R. A pp. P. 17, 31. ,4 T he A dm inistrative O ffice o f the U nited States C ourts has informed us that as o f June 1985, the average tim e in the D istrict o f C olum bia Circuit fro m filing o f the last b rief to hearing or subm ission is 4.5 months, and the average tim e from hearing or subm ission to final disposition is 2.4 months. 15 “T h e circu its are in general agreement th a t the passing o f the 30-day p eriod does not deprive an appellate c ou rt o f jurisdiction.** United States v. Johnson , 736 F.2d 358, 362 n.5 (6th Cir. 1984); see alsot e.g.. In re Grand Jury Proceedings (A Grand Jury Witness v. United States), 776 F.2d 1099, 1101-02 (2d Cir. 1985); Melickian v. United States , 547 F.2d416, 4 1 7 -2 0 (8th C ir.), cert, denied , 430 U.S. 986 (1977). But see In re Berry, 521 F.2d 179,181 (10th Cir.) (dictum that 30-day rule is mandatory), cert, denied, 423 U.S. 928 (1975). 16 T he Brainer court stated: In determ ining w hether the Speedy T rial Act disrupts the constitutional balance between C on gress an d the courts, “th e proper in q u iry focuses on the extent to w hich (the Act] prevents the [Judiciary] from accomplishing its constitutionally assigned functions.” A considerable degree o f congressional intervention in ju d ic ia l adm inistration is constitutionally perm issible if such intervention is “ju stifie d by an o v errid in g need to prom ote objectives within the constitutional au th o rity o f Congress.** 691 F.2d a t 6 9 7 -9 8 (quoting Nixon , 433 U .S . at 443).
124 purpose of the proposed amendment, we cannot predict how that balance would be struck. In sum, we believe that the proposed amendment raises serious constitu tional problems arising from the doctrine of separation of powers. The most critical of those problems — that Congress would usurp the Judiciary’s role in determining the outcome of particular cases — could be alleviated by deleting from the amendment the provision that if the court of appeals does not rule on a petition for review within ninety days of its filing, the Commission’s decision “shall be deemed to be affirmed.”
Ph il l ip D . B r a d y Acting Assistant Attorney General Office o f Legislative and Intergovernmental Affairs*
* NOTE: This letter was drafted by the O ffice o f Legal Counsel for the signature of the A cting A ssistant A ttorney G eneral fo r the O ffice o f Legislative and Intergovernm ental A ffairs. Congress subsequently granted its consent to the C om pact, see Pub. L. No. 9 9 -2 4 0 , S§ 212, 227, 99 Stat. 1842, 1860, 1909-24 (1986) (codified a t 42 U .S.C . § 202 Id note), and the proposed am endm ent discussed herein becam e part o f the Com pact, see art. IV (o)(2), 99 Stat. at 1917.