Full opinion text
MEMORANDUM OPINION AND ORDER KANE, District Judge. I BACKGROUND On December 9,1987 Bernard Smith was indicted for the offense of escape from custody in violation of 18 U.S.C. § 751. On January 15, 1988 he entered a plea of guilty to the offense. Presently, he awaits sentencing. The offense was committed on November 29, 1987. Defendant therefore falls to be sentenced according to the terms of the Sentencing Reform Act, 1984, 28 U.S.C. §§ 991-98 (1987), since it applies to offenses committed after November 1, 1987. Smith has moved to declare the Sentencing Reform Act of 1984 constitutionally invalid. Similar motions have been filed by defendants throughout the country. Three courts to date have fully addressed this issue. In United States v. Ira Russell Arnold, 678 F.Supp. 1463 (S.D.Cal.1988), the United States District Court for the Southern District of California declared the Act unconstitutional. An order adopting the reasoning of that case was issued in United States v. Manley, No. 87-1290-R, slip op. (S.D.Cal. Feb. 18, 1988). A similar order was issued in Texas in United States v. James Alton McLean, No. B-87-544, slip op. (S.D.Tex. March 2, 1988) [available on WESTLAW, 1988 WL 90378]. In United States v. Ruiz-Villaneuva, Linares, Santee and Casarez, 680 F.Supp. 1411 (S.D. Cal.1988) another judge of the Southern District of California ruled the Act constitutional. In United States of America v. Michael Chambless et al., 680 F.Supp. 793 (E.D.La.1988), the Act was also declared constitutional. The reasoning of Chambless was adopted in United States v. Antonio Jose Franco, et al., No. 87-44, (E.D.Ky. March 18, 1988). A written opinion is awaited in this case. In Federal Defenders of San Diego v. U.S. Sentencing Commission, 680 F.Supp. 26 (D.D.C.1988) a similar action was dismissed on the grounds plaintiffs lacked standing. No standing issue arises in this case. II THE SENTENCING REFORM ACT The Sentencing Reform Act of 1984 represented the culmination of over ten years of effort commenced in 1971 by the National Commission on Reform of Federal Criminal Laws. The determination to overhall the traditional federal sentencing framework sprang from a deep-rooted dissatisfaction with a perceived lack of comprehensiveness and consistency in federal sentencing and the limited availability of sentencing options under the old system, see Sen. Rep. No. 98-225, 37-50 (98th Cong. 2nd Session, September 14, 1983), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3220-3232. To this end, Congress established the new and not uncontroversial sentencing system at issue in this case. The fulcrum of the Sentencing Reform Act is the United States Sentencing Commission, 28 U.S.C. § 991. It is styled ‘an independent commission in the judicial branch of the United States’, § 991(a). Its seven voting members and one non-voting member are appointed by the President and are removable by him only for neglect of duty, malfeasance in office or ‘for other good cause shown’, id. Three of the voting members must be federal judges, id. These three members are selected from a group of six recommended to the President by the Judicial Conference of the United States, id. A federal judge may serve as a member of the commission without resigning from his position on the bench, 28 U.S.C. § 992(c). The voting members of the commission are appointed for terms of no more than six years, and no member may serve more than two full terms, 28 U.S.C. § 992(a) and (b). The commission acts by an affirmative vote of at least four voting members, 28 U.S.C. § 994(a). One of the seven voting members of the commission is appointed chairman by the President, § 991(a). The chairman of the commission is responsible for convening and presiding at commission meetings, § 993(a). He is further responsible for preparing requests for appropriations for the commission and for directing the use of commission funds, § 993(b). The commissioners serve full time for the first six years of the guidelines coming into effect. Thereafter, the voting members, with the exception of the chairman, serve part time as necessary to perform the duties and powers of the commission, § 992(c). There is no prohibition in the statute upon a federal judge being appointed chairman. The purposes of the commission are two fold. First, it is directed to establish sentencing policies and practices for the federal criminal justice system which assure the realization of the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2), provide certainty and fairness in meeting those functions and reflect advances in the understanding of human behavior insofar as relevant to the criminal justice process, § 991(b)(1). Second; it is designed to develop means of measuring the extent to which sentencing practices are effective in meeting the stated purposes of sentencing. 28 U.S.C. §§ 994 and 995 then set forth respectively the duties and powers with which Congress has equipped the commission to facilitate an effective realization of these purposes. § 994(a) obliges the commission to establish guidelines for the use of a sentencing court in determining the sentence to be imposed in a criminal case. These guidelines must include a determination whether to impose a sentence of imprisonment, probation or a fine, a determination of the appropriate amount of a fine, and length of period of probation or term of imprisonment, a determination of whether sentence to a term of imprisonment should include a requirement of supervised release, and a determination whether multiple sentences to terms of imprisonment should run concurrently or consecutively, § 994(a)(1). § 994(b) then provides, (1) The commission in the guidelines promulgated pursuant to subsection (a)(1), shall, for each category of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code. (2) If a sentence specified by the guidelines includes a term 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 per cent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment. In establishing categories of offenses for use in the guidelines, the commission must consider the grade of the offense, the harm caused by the offense, the public concern generated by the offense, the deterrent effect a particular sentence will have on the offense, and the current incidence of the offense, § 994(c). In considering categories of defendants a further list of factors must be considered including age, education community ties and role in the offense, § 994(d). The commission is then directed to draw up ‘general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation’ that will further the purposes outlined in 18 U.S.C. § 3553(a)(2), § 994(a)(2). These policy statements must negotiate the possible use of sanctions, conditions of probation and supervised release, sentence modifications, imposition of fines, plea agreement authorities and implementations, guidelines for the revocation of probation and temporary release provisions and pre-release custody. In promulgating the guidelines, the commission is directed to take into account the nature and capacity of federal penal institutions and is obliged to make recommendations concerning any changes in those facilities necessitated by the guidelines, § 994(g). It must further consider factors such as the treatment to be allotted to first offenders, rehabilitation, incremental penalties, and substantial assistance rendered by a defendant in the investigation or prosecution of another person who committed an offense, § 994(j)-(m). The act also provides more specific guidance regarding certain categories of defendants including those with prior convictions or those who commit violent crimes, § 994(h), (i). The commission must make recommendations to Congress dealing with the maximum utilization of resources to deal effectively with the Federal Prison Population, § 994(q). It must make recommendations on an ongoing basis to Congress regarding the modification of the guidelines including the grades or maximum penalties of those offenses for which it sees fit, § 994(p), (r), (t), (u). The commission’s duties also include conferring with specified organizations and the collecting and distributing of information. The commission has a duty to consider any petition filed by a defendant requesting modification of the guidelines as utilized in the sentencing of that defendant, § 994(s). Each judge must submit to the commission a report of every sentence handed down under the guidelines, § 994(w). § 995 then delineates the powers of the commission. These are largely of an administrative nature, but include the power to establish research and development programs § 995(a)(12), to issue to probation officers instructions concerning the application of the guidelines and policy statements § 995(a)(10), to publish data and to collect and disseminate information, § 995(a)(14), (15). This section provides that a simple majority of the membership of the commission shall constitute a quorum for the conduct of business, § 995(d). The guidelines currently controlling were promulgated by the Commission on April 13,1987, as amended on December 15,1987 and January 5, 1988. Their character was well described by the court in Ruiz-Villaneuva, Offenses were grouped into 43 base levels, according to relative severity. Recommended sentences for each base level were figured, after a review of past sentencing practices. Consideration of certain aggravating and mitigating circumstances was allowed in order to take into account the gravity of a specific crime. The Commission also categorized offenders into six groups on the basis of their criminal history. The Commission then plotted the coordinates for offenses and offenders and produced a grid which sets out sentencing ranges. The Commission estimated that the guidelines as originally promulgated would apply to ninety percent of all cases in the federal courts (with amendments forthcoming as necessary). at p. 1415. The guidelines, actually mandates, are then imposed upon the federal courts by 18 U.S.C. § 3553(b), The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described. Indeed, as the government has itself noted, this binding quality of the ‘guidelines’ means they are not guidelines at all. Either the government or the defendant may appeal should a sentence be imposed outside the commission guidelines, 18 U.S.C. § 3742. The statute further abolishes the Parole Commission, with effect from five years after the guidelines come into operation, Pub.L. 98-473, Title II § 235. Accordingly, it is clear the actual time served by an offender under the new system is likely to be substantially longer than it was before. It is equally clear that a new and larger bureaucracy has been substituted for an older and less pervasive one. Defendant submits two broad arguments in favor of his contention that the scheme enacted by the statute is unconstitutional. First, he asserts the membership of judges on the commission violates the principle of separation of powers. He also contends in this context that the removal power vested in the President violates due process and separation of powers. His second argument is that the authority given to the commission by Congress to write and promulgate the official guidelines represents an unconstitutional delegation of authority. I shall deal with these contentions in the following fashion. First, I shall examine the question of separation of powers from the standpoint of the problem of membership of judges on the commission. Second, I shall consider the delegation of authority contention. Finally, I shall make some general observations regarding the operation of the Act which have not been specifically raised by counsel in this case. Ill SEPARATION OF POWERS 1. The Doctrine. The tripartite framework for power erected by the Constitution around the legislature, the executive and the judiciary provided ‘the foundation of a structure of government that would protect liberty’, Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 3186, 92 L.Ed.2d 583 (1986). As the Supreme Court pointed out in Myers v. United States, 272 U.S. 52, 116, 47 S.Ct. 21, 25, 71 L.Ed. 160 (1926), the framers sought to embrace ‘Montesquieu’s view that the maintenance of independence as between the legislative, the executive and the judicial branches’ was an essential prerequisite to the resistance of tyranny. The rationale behind such concerns is not difficult to comprehend. As James Madison asserted, where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free Constitution are subverted. The Federalist, No. 47, pp. 302-303 (C. Rossiter ed. 1961) (Emphasis in original) The core function of the doctrine is accordingly to ensure resistance to ‘[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power’, INS v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317 (1983). Nonetheless, the doctrine does not operate in a political vacuum. As Chief Justice Taft noted in Hampton v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928) This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. This appreciation of the exigencies of efficiency has prompted a view of the doctrine of separation of powers as imposing upon the branches of government ‘separateness but interdependence, autonomy but reciprocity’, Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Justice Jackson concurring). As the Supreme Court said of the framers in the context of the doctrine, They likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude establishment of a Nation capable of governing itself effectively. Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed. 659 (1976). This in turn has encouraged the court to appreciate the limited utility of a perception of the concept of separation of powers which is purely normative. Instead, the emphasis in subjecting government to scrutiny under the doctrine is functional. The proper inquiry is upon the extent to which the encroachment of one branch of government upon another prevents the affected branch from accomplishing its constitutionally assigned functions, Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977) citing United States v. Nixon, 418 U.S. 683, 711-712, 94 S.Ct. 3090, 3109-3110, 41 L.Ed.2d 1039 (1974). As the court pointed out in Nixon v. Administrator of General Services, Only where there is potential for disruption present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress. 433 U.S. 425, 97 S.Ct. 2777. It must be said that the approach adopted by the Supreme Court in recent years to separation of powers problems could lead one to question the continued vitality of this functional approach in the form enunciated in Nixon, see particularly Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). For reasons I shall mention at greater length below, the ‘functional approach’ rests upon a somewhat incomplete historical account of the doctrine, at least when matched against the problems arising from the participation of members of one branch of government in affairs more properly regarded as the concern of another. Nonetheless, I will abide by the Nixon test here, if only to err on the side of caution. This approach has its difficulties. It infuses the doctrine of separation of powers with an amorphous, but nonetheless essential, component that renders judicial consideration of the principle always difficult and reliance upon precedent frequently unhelpful. The analysis mandated by this functional aspect of the separation of powers has been described variously as ‘a delicate exercise in constitutional interpretation’ Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962), ‘a pragmatic analysis of the extent to which an act by one branch of government prevents another from performing its assigned duties’, Geraghty v. United States Parole Commission, 719 F.2d 1199, 1211 (3rd Cir.1983), and ‘a formidable task’, United States v. Brainer, 515 F.Supp. 627, 630 (D.Maryland, 1981). 2. The Doctrine and the Judicial Branch. In the context of asserted intrusions into the sphere of the judiciary, these difficulties are of an even more imposing nature. While the duties, powers and functions of the legislature and the executive might in general be readily listed and easily identified, those of the judiciary necessarily import a more elusive component. Partiality and predetermined views on behalf of their members are an accepted and integral element of the legislative and executive processes. In the case of the judiciary, however, impartiality and absence of predetermined opinions are fundamental aspects of the judicial function. As the Supreme Court has stated, The Federal Judiciary was ... designed by the Framers to stand independent of the Executive and Legislature — to maintain the checks and balances of the constitutional structure, and also to guarantee that the process of adjudication itself remained impartial. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58, 102 S.Ct. 2858, 2864, 73 L.Ed.2d 598 (1982). When we are dealing, as here, with the conduct of individuals holding offices within the three branches of government, severance of the individual from the position he held may be possible in some circumstances with a member of the legislative or the executive. With a member of the judiciary, however, the distinction is conceptually facile. As the court pointed out regarding the application of the doctrine of separation of powers to the judicial branch in In re Sealed Cases, 838 F.2d 476 (D.C.Cir.1988), It also preserves an independent and neutral judiciary, relatively removed from the decisions and activities of the other two branches. Discharging tasks other than the deciding of cases and controversies would ‘involve the judges too intimately in the process of policy and thereby weaken confidence in the disinterestedness of their judicatory functions’. at p. 512, quoting F. Frankfurter, Advisory Opinions, 1 Encyclopedia of the Social Sciences 475, 478 (1930). The preservation of judicial detachment has posed a constant and difficult historical problem. A perusal of the, admittedly few, decisions dealing with the impact of the separation of powers on the functions of the judiciary both defines its magnitude and indicates the great care which should be taken in examining claimed violations of the principle in context. In Hayburn’s Case, 2 U.S. (2 Dal.) 408, 1 L.Ed. 436 (1792) the Supreme Court encountered the question of the validity of a statute which purported to vest in the Court of Appeals the power to settle pension claims of widows, invalids and orphans. These determinations were then subject to revision by Congress and the Secretary of War. While the issue was determined moot, the court included in its opinion the decisions of three courts which cast doubts over the validity of the Act. These decisions found the legislative control facilitated by the Act ‘radically inconsistent with the independence of [the] judicial power’. More on point, the objection was raised that ‘neither the Legislative nor the Executive branches can constitutionally assign to the judicial any duties but such as are properly judicial, and to be performed in a judicial manner’. The duties assigned to the courts by the Act were not of a judicial character. The court considered the latter problem further in United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 40 (1851). Here it was faced with an appeal under a statute directing a United States District Court in Florida to receive and adjust injury claims arising from the Treaty of 1819 with Spain. The court found that processing of claims in this fashion was not a judicial act. Therefore, the power could not be imposed upon the district court qua the district court. It elected to construe, however, the statute as conferring the power in question upon the district judge in question in his capacity as a commissioner. In so determining, the court made clear that extrajudicial duties may be imposed upon Article III judges on an individual basis that could not be imposed upon a court acting as such. Ex Parte Siebold, 100 U.S. (10 Otto.) 371, 25 L.Ed. 717 (1879) concerned the validity of a statute vesting the courts with the power to appoint election commissioners. In upholding the Act, the court examined the propriety of imposing upon the judiciary duties of appointment which were admittedly non-judicial. In deciding to uphold the constitutionality of the Act, the court emphasized ‘the duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts’ and further that ‘in the present case there is no ... incongruity in the duty required so as to excuse the courts from its performance’, 100 U.S. at 398. In Hobson v. Hansen, 265 F.Supp. 902 (D.D.C.1967) a three judge district court for the District of Columbia considered the validity of a D.C. statute requiring that members of the board of education be appointed by the United States district judges for the district. While the validity of the provisions was upheld on two grounds not immediately relevant here, the court also considered the power of the federal judiciary to perform non-judicial functions. In upholding the statute in question on this ground also, the court asserted ‘[t]here is no constitutional principle that federal judges may not engage officially in non-judicial duties’, 265 F.Supp. at p. 915. Here, it should be noted, relying upon the holding in Siebold the court distinguished between powers of appointment and those of an ongoing administrative nature. In Re Sealed Cases, the United States Court of Appeals for the District of Columbia considered the constitutionality of the Ethics in Government Act of 1978, 28 U.S. C. §§ 49, 591-598 (1982 & Supp.III). The grounds of challenge were the independent counsel appointed under the Act to investigate the actions taken by appellants while serving in government positions was appointed by a Special Court (the Independent Counsel Division of the United States Court of Appeals for the District of Columbia Circuit) upon motion of the Attorney General, and that counsel’s prosecutorial jurisdiction was to be defined by the court. This, it was argued, constituted a violation of the separation of powers. The court agreed. Examining the holding in Hobson v. Hansen, it characterized the court there as concerned with appointment of an officer and not with the type of ongoing supervision with which the Ethics in Government Act was concerned. It agreed a violation of the separation of powers principle had occurred, finding the intimate involvement of an Article III court in the supervision and control of a prosecutorial office undermined the status of the judiciary as a neutral forum for the resolution of. disputes between citizens and their government. Interestingly, however, it also found that independent of this functional impact on the judiciary occasioned by the violation of the principle of separation of powers, the doctrine was implicated by the very fact the Article III court was being called upon to ‘administer the executive office’, at p. 512. It also emphasized that the case and controversy limitation of Article III was intimately bound up with the separation of powers doctrine. Two decisions bearing more directly upon the problem at issue in this case, are In Re Application of the President’s Commission on Organized Crime, subpoena of Lorenzo Scaduto, 763 F.2d 1191 (11th Cir. 1985) and In the Matter of the President’s Commission on Organized Crime, subpoena of Nicodemo Scarfo, 783 F.2d 370 (3rd Cir.1986). Both involved challenges to the constitutionality of the President’s Commission on Organized Crime. In both, witnesses subpoenaed to appear before the commission argued the presence of two Article III judges on the commission violated the principle of separation of powers. In Scaduto the Eleventh Circuit commenced its analysis with the observation that ‘conferring non-judicial functions on members of the judiciary may raise separation of powers problems’, 763 F.2d at 1196. It then distilled from the Nixon cases the following inquiry, does the imposition of powers traditionally associated with one branch of government on officials of another branch interfere with their ability to perform their constitutionally required duties in the branch of which they are a part? 763 F.2d at 1196-1197. In determining that in the case of the Article III judges on the commission it did, the court identified the following core duty of the judiciary, Impartiality is one of the central, constitutionally-ordained requirements of the federal judicial office. 763 F.2d at 1197, citing United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980). In concluding that the membership of judges on the commission interfered with this aspect of the judicial function, the court focussed on the impact upon the individual judges of their duties as commissioners. It pointed out the difficulties they would encounter in separating their experiences on the commission from the situations they might encounter on the bench. It further reasoned that even if this should not pose a problem to the individual judges it was not clear that litigants could sustain equal faith in their impartiality, 763 F.2d at 1197. Accordingly, the court reasoned, the conferral of this power on judges violated the principle of the separation of powers. In Scarfo, the Third Circuit began its analysis from a not dissimilar perspective. Two important points observed by the court, however, prompted it to the opposite conclusion. First, it noted that in the case of the President’s Commission on Organized Crime, the participation of the Article III judge’s was voluntary. It asserted, we think it more accurate to focus on the voluntary acceptance of that authority by judicial officers. The attention should be on the judge’s conduct and not that of those who tendered, but did not impose, the powers. 783 F.2d at 378. The second point related to the limited nature of the disruption caused to the federal judicial system as a whole by the participation of judges on the commission. Members of the commission, it asserted, who found themselves open to accusations of bias while on the bench could simply recuse themselves. In this regard the court system would be faced with ‘a limited dislocation and not one which would require reassignment of a large number of cases’, 783 F.2d at 381. As I shall discuss below, it is unnecessary for me to choose between these two cases. Nonetheless, I accept the force of the latter argument. Defendant here contends the judge-members of the United States Sentencing Commission would have to recuse themselves from a considerable number of cases in order to avoid either bias or the appearance of it thereby furnishing the disruption to the judicial system required by the Nixon test. In my view this degree of disruption does not suffice to justify negating the Act on separation of powers grounds. A more broadly based dislocation of the judicial system and violation of the tripartite powers doctrine is needed to support such a contention. All of these cases have involved the complex and close relationship between the separation of powers doctrine and the principle that functions of an administrative nature may not be imposed upon Article III judges. Every judge is painfully aware of the close distinctions, fine lines and complex constitutional history which have characterized this problem. On the one side are Hayburn’s Case and United States v. Ferreira. Here as well one finds the assertion of the Jay Court in 1793 in response to an inquiry by President Jefferson as to whether the judiciary could make itself available to advise the executive on legal questions that ‘the lines of separation between the three departments of government’ prohibited the giving of such advice. In 1942, Chief Justice Stone declined President Roosevelt’s request to serve on a commission investigating the rubber shortage. In undertaking such assignments, he asserted, a judge invited attack and pointed to his ‘peculiar situation’ and the ‘appropriate influence of his office’. He raised similar objections when asked to serve on the United States Ballot Commission. When asked to serve on the Commission to Investigate the assassination of President Kennedy, Chief Justice Warren initially declined asserting ‘it is not in the spirit of constitutional separation of powers to have a member of the Supreme Court serve on a presidential commission’. Indeed, it would seem Chief Justice Burger raised this very objection with the President when the idea of three judges sitting on the U.S. Sentencing Commission was first proposed. On the other side are the decisions in Siebold and Hobson v. Hansen. John Jay served as Ambassador to England while Chief Justice in 1794. John Marshall was both Secretary of State and Chief Justice for a short period of time. Justice William Johnson was an advisor to President Monroe on federal-state relations. Chief Justice Taft was heavily involved in congressional politics and engaged in a number of diplomatic missions. Justice Jackson served as a prosecutor at the Nuremburg trials while a sitting Supreme Court Justice. Judge Higginbotham served on the National Commission on the Causes and Prevention of Violence and a number of judges sit on the National Commission on Reform of Federal Criminal Laws. The Chief Justice similarly has a number of statutorily assigned non-adjudicative tasks, including administrative responsibilities for the Supreme Court and the federal judiciary. It is clear that the practice of appointing federal judges to non-judicial positions does not evidence an ‘unbroken history’ as the government has sought to argue. Strong reservations have been asserted by many judges to this practice. Hence decisions seeking to allot constitutional force to this practice are unhelpful, see Marsh v. Chambers, 463 U.S. 783, 790, 103 S.Ct. 3330, 3335, 77 L.Ed.2d 1019 (1983). Nonetheless, a number of distinctions need to be made. First, there is a difference between allotting non-judicial functions to the courts and to individual judges. Second, there is a clear distinction between facilitating voluntary participation by judges in extra-judicial activities and forcing them to do so. Third, it is undoubtedly permissible to enable courts to execute managerial functions designed to facilitate the judicial process. These distinctions have been much preyed upon by the government in this case. While they clearly play a role in the resolution of the instant problem, their application to the system and method adopted by Congress in embroiling the judiciary in the Sentencing Commission is questionable in the extreme. Wherever the line is drawn, however, what emerges from a consideration of this history is that an exceedingly broad system of interests is implicated when separation of powers issues arise involving members of the judiciary in their individual capacities. The cases and examples discussed above are important here for two reasons. First, they clearly dictate that in examining the functional impact of a prima facie violation of the separation of powers principle involving the judiciary, particular care must be taken to ensure the quintessential quality of impartiality is not violated. The point was made most forcefully in In Re Sealed Cases when the court observed that the involvement of Article III courts in the supervision and control of a prosecutorial office ‘undermines the status of the judiciary as a neutral forum for the resolution of disputes between citizens and their government’ at p. 516. The second point to emerge is the complete impossibility of severing the fundamental principle that ‘executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Article III of the Constitution’, Buckley v. Valeo, 424 U.S. at p. 123, 96 S.Ct. at 684, from the separation of powers doctrine. This is important, for the courts in both Scaduto and Scarfo labor at points under the impression that the doctrines are distinct. Even a brief perusal of Haybum’s Case indicates this is not true. Thus, while in Ferreira the court saw no objection to allowing the power to adjudicate claims to be allotted to the judges personally as commissioners, in opposition to imposing such a duty on courts, it is impermissibly deduced that Congress may ask judges to perform whatever non-judicial functions it pleases. The holding in Ferreira must be viewed against the background of separation of powers principles. This means that Congress may only impose non-judicial functions on individual judges if doing so does not in the individual case violate the dictates of that doctrine. Similarly, the holding in Hobson v. Hansen must be viewed within this context. It is axiomatic that Article III courts may not generally be allotted non-judicial functions by other arms of government. This principle is in itself an extrapolation of the separation of powers doctrine. Therefore, the question arises whether the functional approach of the Court in Nixon has any role at all to play in issues of this nature. While not perhaps a persuasive interpretation of Nixon in the context of the legislative and executive branches, Justice Powell’s following observation is pertinent as regards the judicial branch and the separation of powers; [It] may be violated in two ways. One branch may interfere impermissibly with the other’s performance of its constitutionally assigned function. Alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another. INS v. Chada, 462 U.S. 919, 963, 103 S.Ct. 2764, 2790, 77 L.Ed.2d 317 (1983) (Powell J., concurring) (citations omitted). The fact that mere participation by a judge in non-judicial activities may implicate separation of powers questions in my view leaves open to considerable doubt the question of whether the functional test of Nixon is of complete application to the judicial branch. A Kantian method of analysis seems preferable. While I do not need to decide the matter here, I reemphasize that in In Re Sealed Cases the court did not appear to apply singularly the functional test, preferring instead to assert, Of the three branches, it is the role of the judiciary that the Constitution most clearly and tightly confines within narrow borders. At p. 516. 3. The United States Sentencing Commission — The Nature of the Power. Here, I will examine two closely related issues. I shall discuss first the abstract question of the place of sentencing within the three branches of government. This has in itself given rise to a number of difficulties. From there, I consider the actual place the Sentencing Commission has been assigned within the limbs of government. A. The Power to Sentence. Here, the edges of the separation of powers doctrine and the delegation principle become blurred. My concern at this point is not with the issue of whether Congress has in fact properly delegated a quantum of the sentencing function to the Sentencing Commission, but with the threshold issues of whether that power may be delegated at all and then whether there are limits upon Congress' choice of means or agency within the three arms of government for that delegation. This requires an analysis of three problems. First, to which branch of government does the power to prescribe a sentence for a crime belong? Second, may the branch to which that power belongs delegate any aspect of the power? Third, if the answer to this inquiry is yes, to which of the other two branches may that power be delegated? First, the contention that the general prescription of punishment for a criminal offense is in some way an inherently judicial function must be scotched. It is not. The Supreme Court has stated, within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980). In United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948), the court stated ‘defining crimes and fixing penalties are legislative, not judicial functions’. ‘[Ljegislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in non-capital cases’, Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). ‘[T]he authority to define and fix the punishment for a crime is legislative’, Ex Parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 61 L.Ed. 129 (1916). In United States v. Van Horn, 798 F.2d 1166, 1168 (8th Cir. 1986) the Eighth Circuit opined that the legislature ‘could if it wished, establish a mandatory set sentence for a particular crime, and it would be constitutional’. This has remained a constant theme of constitutional jurisprudence. In fact, during the first days of the Republic the period of incarceration was prescribed with specificity by the legislature. Accordingly, the power to prescribe general sentences for particular offenses is a legislative one. As I shall mention later, this is not to say the power to prescribe a sentence for a particular defendant is legislative. It is not. Given that the power to prescribe a sentence for a crime properly belongs to Congress, the next issue is whether that power can be delegated to another branch of government. The argument has surfaced from time to time within our constitutional jurisprudence that certain types of core functions exist within the legislative power that cannot be delegated, see Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43, 6 L.Ed. 253 (1825), Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). There is scant authority for this proposition, which appears to run counter to the basic principle that the grant of a constitutional power implies a facility to delegate authority in order to effect the underlying purposes of that power, Lichter v. United States, 334 U.S. 742, 778-779, 68 S.Ct. 1294, 1313-1314, 92 L.Ed. 1694 (1948). The argument was flatly and persuasively refuted in Synar v. United States, 626 F.Supp. 1374, 1385 (D.D.C.1986), aff'd sub nom. Bowsher v. Synar, 475 U.S. 1009, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), First, plaintiffs cite no case in which the Supreme Court has held any legislative power ... to be non-delegable due to its ‘core functions’ status____ Second, adoption of a ‘core functions’ analysis would be effectively standardless. No constitutional provision distinguishes between ‘core’ and ‘non-core’ legislative functions, so that the line would necessarily have to be drawn on the basis of the court’s own perceptions of the relative importance of various legislative functions. See also FPC v. New England Power Co., 415 U.S. 345, 352-353, 94 S.Ct. 1151, 1155-1156, 39 L.Ed.2d 383 (1974) (Justice Marshall concurring in part and dissenting in part). Given that the power to prescribe a sentence may be delegated by the legislature, the next question is whether it must be delegated to one of the executive or judicial branches. As I shall discuss shortly, the nature of the functions implicated in the formulation of guidelines for the use of courts in sentencing is such that they naturally fall within the parameters of the executive. This is not to say Congress could not have delegated to the judiciary the power to determine sentences in individual cases arising before them. Rather it demands that if Congress should decide to delegate this power to the judiciary, it cannot demand the function be exercised in a fashion more appropriate to the executive branch. Nonetheless, defendant maintains there is a problem. He claims this submits the process to the risk of improper interference by the executive in a judicial function. As his argument runs, the coalition between the prosecutor and sentencer within the executive necessitated by the new guidelines renders in and of itself the act unconstitutional. A consideration of United States v. Gordon, 580 F.2d 827 (5th Cir.1978) illustrates the infirmity of this argument. Here the court was faced with a challenge to the constitutionality of the Drug Abuse Prevention and Control Act of 1970 which gave the Attorney General the power to schedule, reschedule and deschedule drugs. In dealing with the contention that that Act unconstitutionally vested power to declare acts criminal with the prosecutor, the court emphasized that the Act then before it ‘contains sufficient safeguards against arbitrary and unfair action’, 580 F.2d at 840. As I shall discuss further below in the context of the delegation doctrine, the Act presently under examination is specific enough in its detailing of the parameters of executive discretion to ensure no impropriety in the grant of this general authority to the executive. Accordingly, and because there is no per se bar preventing the executive from effecting functions of this nature, this ground of challenge must fail. See Geraghty v. United States Parole Commission, 719 F.2d 1199 (3rd Cir.1983). Those authorities cited by defendant in support of this contention, United States v. Wolfson, 634 F.2d 1217, (9th Cir.1980), Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) are concerned with individual instances of violation of due process in particular cases which are in reality of little application to the instant situation, involving as it does a general delegation of legislative power. This is not to say the executive has a carte blanche to act as it pleases in formulating these guidelines. Nor is it to say there are no limits imposed upon the nature of the guidelines that may be devised. What it means is that any such limitations that do exist spring not from any bar against delegation. I shall discuss the limitations upon its power and the implications those limitations impose on the commission in the final part of my opinion. Finally, these and other cases cited, United States v. Marzano, 149 F.2d 923, 926 (2d Cir.1945) assume that the promulgation of sentencing ranges is a judicial function which, as I have shown, it need not necessarily be. B. The Commission. As I have pointed out, the commission is styled in the judicial branch of the United States, 28 U.S.C. § 991. This poses an initial problem. The government contends the court should effectively disregard this label and examine instead the nature of the functions exercised by the commission in order to determine which branch of government it actually operates within. This approach is grounded in the belief that if the commission is properly within the judicial branch, its composition is unconstitutional. Such an examination, the government asserte, leads to the conclusion the commission is properly regarded as being within the executive. The commission itself contends the label is correct and the placement of it within the judiciary in fact raises no constitutional difficulties. Defendant contends that either way the Act is unconstitutional. In Arnold the naked fact of placement within the judiciary was found to render the Act unconstitutional, p. 1470. Although much argument has been made regarding this label, I am not going to dwell on the issue at length. The designation afforded by Congress should be disregarded. I have two reasons. First, as I shall discuss again in the context of the Ruiz-Villaneuva decision, the proper inquiry is to the substance of the commission’s functions and not with the appellation Congress has chosen to attach. This was the approach endorsed by the Supreme Court to problems of this nature in INS v. Chada, 462 U.S. at 952, 103 S.Ct. at 2784. Second, even if I am wrong in this regard— and I don’t think I am — I find the allotment to the judiciary of this type of power is unconstitutional. However, my own impression is that insofar as this labelling is irregular, it is severable and accordingly poses no actual difficulty, see Alaska Airlines v. Brock, 480 U.S. 678, 107 S.Ct. 1476, 1480-81, 94 L.Ed.2d 661 (1987). Nonetheless, I should briefly explain why I find placement in the judiciary of the United States Sentencing Commission would be improper. The functions exercised by the commission are executive in nature. Here, the commission exercises little that resembles a judicial power. Accordingly, placement within the judicial branch is a clear violation of the Article III case and controversy requirement, see infra this section, part 2. This is not a situation involving the mere assignment of non-judicial functions to individual judges, it is an instance of these functions being assigned to the judiciary as a whole in clear violation of the principles enunciated in Haybum’s Case. Second, the removal power invested by the statute in the President is clearly in violation of the principle that members of one branch of government are not removable by members of another, Bowsher v. Synar, 106 S.Ct. at 3187-89. Third, the fact non-Article III judges are members of the commission violates the rule that non-Article III personnel may not usurp the functions of Article III judges, Northern Pipeline v. Marathon Pipe Line, 458 U.S. 50, 58-59, 102 S.Ct. 2858, 2864-2865, 73 L.Ed.2d 598 (1982). And see Booth v. United States, 291 U.S. 339, 350, 54 S.Ct. 379, 381, 78 L.Ed.2d 836 (1934) (‘judicial acts would be illegal unless he who performed them held the office of judge’). Against this the commission raises three broad contentions. First, it asserts the issuance of the guidelines is in direct aid of the judicial function. I deal with this argument towards the end of this part of this section. Second, it claims the task of issuing the guidelines is not an exclusively executive function. I have dealt with this at the end of the previous part of this section. Finally, it claims there is no constitutional restriction upon non-judges serving on the judicial branch. This simply put conflicts with the clear mandate of the court in Bowsher. In short, the commission here wants to have its cake and eat it. It wants to claim it is a judicial body including as members non-judges exercising nonjudicial powers which those members who are judges may legitimately perform. To this contention, I simply cannot accede. Beyond argument, the functions of the commission are executive in nature. The commission is presented with a statutory mandate to formulate guidelines for use by courts when sentencing, 28 U.S.C. § 994(a). It is presented with close parameters within which it must operate in formulating those guidelines. These range from the considerations to be accounted when establishing categories of offenses, § 994(c), to those to be taken into account in formulating categories of offenses, § 994(d). It is then directed, as extensively outlined above, to consider a plethora of factors in prescribing punishment within each offense and defendant category, § 994(e)-(m). All this involves the commission in the task of interpreting and applying the statute. As such the role of the commission is little different from that performed by the Comptroller General under the ‘Gramm-Rudman-Hollings Act’ stricken by the Supreme Court in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). As the Court observed in Bowsher ‘[interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law’. The parole commission for example, which executes similar functions, is part of the executive, 18 U.S.C. § 4202. As in Re Sealed Cases, the primary function of the commission is the interpreting and application of congressional directive, and accordingly is clearly executive in nature, Slip Op. at p. 50. This classification is further clear from a consideration of those cases upholding the constitutionality of the delegation of authority to law enforcement officials to define explosives and classify drugs within the context of the criminal law, United States v. Gordon, 580 F.2d 827, 840 (5th Cir.) cert. den. 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978), United States v. Womack, 654 F.2d 1034 (5th Cir. 1981) cert. den. 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 314 (1982). Furthermore, as the government points out, the commission itself bears the hallmarks of the executive branch. The officers are appointed by the President and are removable by him, see Bowsher, 106 S.Ct. at 3186-89, Humphrey’s Executor v. United States, 295 U.S. 602, 626-32, 55 S.Ct. 869, 873-75, 79 L.Ed. 1611 (1935). The argument has been made that this approach ignores the fact that bodies such as the commission can easily exercise mixed functions, and rigid classifications such as ‘executive’ are of little assistance, and in short unrealistic. I appreciate the force of this contention, but it does little to save the United States Sentencing Commission from the instant challenge. If anything the commission exercises powers of a ‘legislative — executive’ nature. The guidelines formulated by the commission may, under certain circumstances, automatically become law, 28 U.S.C. § 994(o), (p). In fact, the only arguably judicial act performed by the commission is its consideration of petitions filed for reduction of sentence under 28 U.S.C. § 994(s). While, as I have pointed out, the United States Attorney has agreed the functions exercised by the commission are in fact of an executive nature, the commission itself hotly contests this. The commission’s arguments prevailed in United States v. Ruiz-Villaneuva, where the court reasoned as follows. First, it looked to the designation afforded by Congress of which the court asserted ‘[tjhis is language which while not conclusive, nevertheless must be afforded the considerable deference normally owing to congressional determinations’, at p. 1419. Second, it examined the Senate Reports which evidenced, the court maintained, a clear determination to locate the commission in the judicial branch. Then the court examined the line of cases beginning with Hay bum’s Case which consider the concept of judicial function. It concluded the Act did not unconstitutionally allocate power to either the three Article III judges sitting on the commission or the judicial branch as a whole. The court asserted ‘the work of the commission____[is] ... in aid of the judicial function’. I disagree for a number of reasons. First, excessive reliance was placed upon Congress’ labelling of the commission and its intent in so doing as evidenced by the Senate Reports on the issue. This avoids the clear direction given by the Supreme Court in INS v. Chada, above. It ignores the fact Congress cannot salvage an otherwise unconstitutional statute by its determination to impose a particular label on a function. It eschews, more importantly, the overriding role of the courts in supervising that doctrine; it serves to ignore the prohibition against compromising ‘the authority or responsibility of [the] court as the ultimate expositor of the constitution’, Glidden Co. v. Zdanok, 370 U.S. 530, 542-543, 82 S.Ct. 1459, 1468-1469, 8 L.Ed.2d 671 (1962) (Harlan J.). Second, Ruiz-Villaneuva preoccupies itself with examining the question not of the actual character of the function exercised by the commission and its relationship with the traditional allocation of power between the branches of government, but instead with whether the function exercised by the commission might constitutionally be exercised by Article III judges. This absence of consideration of the actual nature of the powers exercised by the commission renders the decision unpersuasive. In any event I regard the conclusion that Article III judges may constitutionally exercise these powers as most probably incorrect. The further argument was raised that because the commission’s functions are in aid of the judicial branch, they may be delegated to a body within the judicial branch. This contention may have a superficial appeal, but on closer consideration it is revealed as grossly mistaken. First, Article III courts are the ultimate arbiters of all laws within the United States. The panoply of commissions, legislating bodies and traditional executive committees which could under such a tender formula be admitted into the judicial branch is terrifying. Second, it confuses the fact that the ultimate inquiry in a matter of this nature is not as much to the area of expertise with which a body is concerned, but with the part in the process of government that body occupies in facilitating that eventual aim. Here, the sphere of operation imposed upon the commission by the Sentencing Act makes the conclusion ineluctable that those powers are indeed executive in nature. An exception to this principle may well exist with regard to the functions exercised by the Administrative Office of the United States Courts, or the Judicial Conference or the Advisory Committee on the Federal Rules of Civil Procedure but these are exceptions which come within the clear proviso facilitated by the Supreme Court for rules which regulate procedure — ‘the judicial process for enforcing rights and duties recognized by substantive law and for justly administering a remedy and redress for disregard or infraction of them.’, Sibbach v. Wilson, 312 U.S. 1, 14, 61 S.Ct. 422, 426, 85 L.Ed. 479 (1941). That this exception must encompass not only the power of the courts to promulgate their own rules but, also to establish some system of self-management is clear and logical, Chandler v. Judicial Council, 398 U.S. 74, 84-85, 90 S.Ct. 1648, 1653-1654, 26 L.Ed.2d 100 (1970). But to extrapolate the concept that any system of rules of assistance to the judicial function can be formulated by the judiciary themselves and within the shadow of the judicial power is to cross a line from matters of internal management, regulation and mere administrative rules to those of external import or primary rules, which if accepted would wreak havoc on our system of government and render the tripartite separation of powers as otiose in the future as judicial discretion in sentencing has become today. In this regard, the commission fails to note the distinction drawn by the Supreme Court in Miller v. Florida, — U.S. -, 107 S.Ct. 2446, 2452-2453, 96 L.Ed.2d 351 (1987) between matters of procedure and punishment, viewing changes of the latter character as ‘hav[ing] little about it that could be deemed procedural’, id. The misconception under which the commission labors may be highlighted by examining the remarks of one commentator, in view of the history of delegations to the judicial branch to promulgate rules and undertake other non-adjudicative functions, it seems rather ahistorical to argue that the function of developing and promulgating standards to guide judges in their sentencing discretion is inherently an executive function. Killian, The Sentencing Commission: Lost In The Interstices of Separation of Powers, 34 Fed.B.News & J. 266, 269 (July/Aug. 1987) (emphasis in original). The point missed here, of course, is that no one is asserting the function of developing standards to guide judges in sentencing is inherently executive. It is the function the government has assigned to the Sentencing Commission in this case which is as a matter of law executive. The Sentencing Reform Act imposes upon the commission the function not of promulgating standards which guide judges in their sentencing discretion, but the function of formulating rules which must be followed in almost all instances and which effectively deprive the judges of any discretion whatsoever. As the Supreme Court said in Miller v. Florida of the sentencing guidelines operating in the respondent state ‘[n]or do the revised guidelines simply provide flexible ‘guideposts’ for use in the exercise of discretion; instead they erect a high hurdle that must be cleared before discretion can be exercised ...’, 107 S.Ct. at 2453-2454. As such it is difficult to argue the function is anything but purely executive. Further, since this function could properly be entrusted to the executive branch, the presidential power of removal of commission members would pose no constitutional barriers. 4- Holding. Even a cursory consideration of the role played by Article III judges in the United States Sentencing Commission points to the conclusion that that body is constituted in violation of the principle of separation of powers. I arrive at this conclusion applying the conventional functional analysis of the impact on the judicial branch of government this assignment of executive power entails. The formal, statutory union of the executive and the judiciary established by the Act radically undermines the concept of an impartial judiciary, free from executive or legislative interference. This commission does not merely rely upon the advice of members of the judiciary to execute legislation. It does not merely facilitate the voluntary involvement on an occasional or infrequent basis of members of the judiciary in such functions. Instead, in what can only be termed a flagrant violation of the principle of separation of the judiciary and the executive, it mandates the constant involvement of Article III judges in an ongoing and continuous executive process, 28 U.S.C. § 994(o), (p), (s). It represents the most patent form of coalition between the judiciary and another governmental branch that was so roundly criticised by the framers when they rejected James Madison’s Virginia Plan. There is no difficulty in determining ‘the Intent of the Framers’ in this instance. The greater difficulty lies in understanding how such starkly obvious intent could be so blatantly disregarded. As Rufus King observed of the judiciary, by being often associated with the executive, they might be induced to embark too far in the political views of that magistrate and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the executive. Federalist Papers No. 73, at 446-447 (Rossiter ed. 1961). The direct and blatant collaboration between the judiciary and the other branches of government the Act creates not only serves to tarnish t