Full opinion text
MEMORANDUM OPINION EISELE, Chief Judge. Mr. Eric Brittman, 26, has been convicted by a jury of robbing the East Branch of the First Commercial Bank of Little Rock, Arkansas. The indictment contained two counts, one charging the bank robbery under 18 U.S.C. § 2113 d, and the other a conspiracy to rob the bank based on 18 U.S.C. § 371. The latter count was dismissed upon motion of the government. The bank robbery count reads as follows: That on or about November 16, 1987, in the Eastern District of Arkansas, ERIC BRITTMAN, by force and violence and by intimidation, did take from the person and presence of Beth Aldrich $37,148 in money belonging to and in the care, custody, control, management and possession of First Commercial Bank, East Branch, Little Rock, Arkansas, the deposits of which were then insured by the Federal Deposit Insurance Corporation, and in committing the aforesaid acts ERIC BRITTMAN did put in jeopardy the life of Beth Aldrich by the use of a dangerous weapon, that is, a handgun, all in violation of Section 2113(d), Title 18, United States Code. Since the crime occurred after October 31, 1987, the new Sentencing Guidelines would appear to control. However, Mr. Brittman has filed a motion, and later an amended motion, to have the Sentencing Guidelines declared unconstitutional. This Court is aware that every district court in the United States has faced, is presently facing, or will soon face such challenges. It has attempted to obtain copies of the opinions already handed down, but it is also aware that it is in the interest of all concerned to have these challenges resolved by the U.S. Supreme Court as soon as possible. For the reasons set forth below this Court is declaring the Sentencing guidelines and the Sentencing Commission unconstitutional, but it agrees with Judge Heaney in U.S.A. v. Jesus Estrada, 680 F.Supp. 1312 (D.Minn.1988), that the following provisions of the Sentencing Reform Act are severable and should therefore remain in effect: (a) the detailed set of principles or sentencing standards which narrow the judge’s discretion in imposing sentences; (b) the requirement that judges state their reasons for imposing particular sentences, thus opening up the sentencing process to the public. However, the Court does not agree that the appellate review of sentences can properly be severed and preserved since the right of appeal and the scope of appeal are so intimately tied to the Guidelines themselves. Nor does the Court agree that “real time” sentencing can be severed because, without the provisions for supervised release, prisoners would go straight from imprisonment to absolute freedom contrary to congressional intent. So we go back to the pre November 1,1987, situation with the parole arrangements intact. Finally the Court recognizes that it ultimately may be reversed and the Guidelines and the Sentencing Commission held constitutional. It has chosen therefore to follow a “two-track” approach. It will, at the time of sentencing, state and explain what its sentence would be assuming the Guidelines are upheld. And it will also state and explain what its sentence would be if the Guidelines are struck down as unconstitutional. Of course, the sentence which will be entered on the Judgment and Commitment form will be the latter only, because that will be the only lawful sentence under the opinion of the Court. However, if the Court is reversed and the Guidelines upheld, a new Judgment and Commitment will have to be entered, but this may be done without any further sentencing hearing. This approach will, it is hoped, effect some efficiency in the light of the uncertainties involved. The undersigned has been authorized by the other Judges of the Eastern District of Arkansas, with the exception of Judge Stephen Reasoner, to state that they agree that the Guidelines and Commission are unconstitutional, although they may not individually agree with the undersigned as to all of the different grounds set forth in the following opinion. They also agree that certain provisions, as set forth above, are severable and will therefore remain in full force and effect. Finally, they agree to follow the two-track sentencing approach described above until questions concerning the constitutionality of the guidelines are finally resolved. Judge Reasoner is not convinced that the Guidelines are unconstitutional and has no present opinion on the severability issue. He has agreed to follow the “two track” sentencing approach. The opinion below is separated and captioned more to provide emphasis than to suggest that any of the individual sections are unrelated and independent of the others. In truth, there is much overlap, inter-meshing and interplay among the various sections. DELEGATION The Court holds that Congress has unconstitutionally delegated its legislative authority to the United States Sentencing Commission. The Constitution provides that, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S. Const. Art. I, § 1. Further, the Congress is empowered “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. Const. Art. I, § 8, cl. 18. “The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested.” Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935). One important function of the non-delegation doctrine is to ensure that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will. Indust. Union Dept. v. Petroleum Inst., 448 U.S. 607, 100 S.Ct. 2844, 2886, 65 L.Ed.2d 1010 (1980) (Rehnquist, J., concurring). The relationship between the popular will and the power to delegate has been articulated by John Locke: The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not make legislators, the legislature can have no power to transfer their authority of making laws and place it in other hands. Id. at 2879, (quoting J. Locke, Second Treatise of Civil Government in the Tradition of Freedom, at 244, M. Mayer, Ed. (1957)). Of course, the foregoing discussion does not mean that Congress may never delegate any of its varied tasks to administrative agencies. First, Congress may authorize fact finding by an administrative agency. Panama Refining, 293 U.S. at 426, 55 S.Ct. at 251. Second, the Constitution does not deprive Congress of “necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits.” Id. at 421, 55 S.Ct. at 248. While mindful of the complexities faced by a modern Congress, this Court is convinced that the Congress, by the creation of the Sentencing Commission and assignment of its duties, did more than simply assign fact finding tasks or subordinate rule making responsibilities to yet one more administrative agency. Rather, Congress delegated its authority in a core legislative field, an area affecting the most fundamental of Constitutional rights. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980) (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); United States v. Wiltberger, 18 U.S. (5 Wheat) 35, 44, 5 L.Ed. 37 (1820) (It is the legislature which is to define crime and ordain punishment). Delegated powers that, as in this case, affect liberty interests must be construed narrowly. Kent v. Dulles, 357 U.S. 116, 129, 78 S.Ct. 1113, 1120, 2 L.Ed.2d 1204 (1958). This is because “the numerous deficiencies connected with vague legislative directives whether to a legislative committee, to an executive officer, ..to a judge and jury, ..or to private persons, ...; are far more serious when liberty and the exercise of fundamental rights are at stake.” United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1967) (Brennan, J., concurring). Indeed, the Court has implied that core “important subjects” exist which must be entirely regulated by Congress, precluding any permissible delegation. United States v. Grimaud, 220 U.S. 506, 517, 31 S.Ct. 480, 483, 55 L.Ed. 563 (1911); See J.W. Hampton, Jr. v. United States, 276 U.S. 394, 408, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928) (The Congress may not delegate its purely legislative power.). The Court holds that the Sentencing Reform Act delegates both the power to establish penalties for violations of Federal law and the power to define criminal conduct. Both of these areas lie within the limited sphere where Congress cannot constitutionally delegate its authority. Although congress may delegate some powers connected with the penal process, it may not delegate “so crucial a legislative function as the redrafting of federal criminal penalties.” See U.S. Parole Comm’n v. Geraghty, 719 F.2d 1199, 1212 (3rd Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 133 (1984) (upholding the creation of the United States Parole Commission). In Geraghty, the court held congressional delegation of authority to determine actual release dates to be constitutional, because the statute in question did not permit the Parole Commission to redraft federal criminal penalties. Rather, it limited the Judicial sentencing function to the selection of a sentence from a range established by Congress and allowed an agency to determine the release date in light of the judicially imposed sentence. Id. at 1212. Thus, the actual power to fix sentences was delegated to trial courts. The Parole Commission could only act within the boundaries established both by Congress and sentencing judges. Traditionally, the setting of maximum possible sentences has been a part of the legislative process by which crimes are defined. Similarly, the fixing of mandatory minimum penalties has been undertaken by Congress in response to its perception of the needs of public safety and order. The Sentencing Reform Act is distinguishable from the statutes in which Congress has not specifically articulated a maximum sentence. For example, in United States v. Jones, 540 F.d 465 (10th Cir.1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977), the court rejected a non-delegation challenge to the special parole term provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970. That statute provided for mandatory special parole terms following imprisonment for certain drug offenses. It provided statutory minimum terms, but it did not provide statutory maximum terms. The court held that the statute was reasonably construed as authorizing maximum special parole terms of life. Id. at 466 (citing United States v. Rich, 518 F.2d 980, 987 (8th Cir.1975)), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976). Therefore Congress had implicitly set a maximum. Certainly, Congress could not have meant, in establishing a Sentencing Commission and enacting the Sentencing Reform Act, to authorize possible life sentences for every federal offense. Likewise, it could not have intended that its statutory maximum penalties always be imposed. In sum, this Court concludes that Congress has delegated the function of establishing meaningful maximum and minimum terms. Furthermore, in Jones, Congress left the determination of special parole terms to the discretion of sentencing judges, a scheme described by the court as “not uncommon.” Id. at 468. By contrast, the establishment of a body like the Commission to rewrite federal criminal penalties is unprecedented. The significance of delegating sentencing authority to judges, as opposed to an executive agency, will be elaborated in the discussion of due process below. “Whatever views may be entertained regarding severity of punishment ... these are peculiarly matters of legislative policy.” Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The delegation in the Sentencing Reform Act violates Article I. Further, the Court holds that the Sentencing Reform Act impermissibly delegates to the Commission the function of defining criminal conduct. Like the task of setting penalties, the definition of crime falls within the core legislative domain and may not be delegated to others. See Whalen 445 U.S. at 689, 100 S.Ct. at 1436; Wiltberger 18 U.S. (5 Wheat.) at 44. It is important to spell out how the Commission has, in effect, created new crimes. Of course, the Commission does not use the term “crimes.” Rather it uses a variety of terms. We are here dealing with what is sometimes referred to as “uncharged conduct,” “incidental conduct,” and “post conviction conduct.” The guidelines frequently refer to such crimes euphemistically and variously as “sentencing factors,” “real offense elements,” “specific offense characteristics,” “particular real facts,” “adjustments,” “disputed factors” and “enhancements.” Let us start with the Commission’s comments on the problem in “Part A, Introduction”, in the Guidelines. It discusses “Real Offense vs. Charge Offense Sentencing” and describes how the Commission moved back and forth on this issue. It then states that the present guidelines have moved closer to a “charge offense” system, but goes on as follows: The system is not, however, pure; it has a number of real elements. For one thing, the hundreds of overlapping and duplicative statutory provisions that make up the federal criminal law have forced the Commission to write guidelines that are descriptive of generic conduct rather than tracking purely statutory language. For another, the guidelines, both through specific offense characteristics and adjustments, take account of a number of important, commonly occurring real offense elements such as role in the offense, the presence of a gun, or the amount of money actually taken. ****** The Commission recognizes its system will not completely cure the problems of a real offense system. It may still be necessary, for example, for a court to determine some particular real facts that will make a difference to the sentence. Yet, the Commission believes that the instances of controversial facts -will be far fewer; indeed, there will be few enough so that the court system will be able to devise fair procedures for their determination. Note the language stating that under the guidelines system it may be necessary for the court “to determine some real facts that make a difference to the sentence.” It is submitted that the term “real facts,” which can and will result in imprisonment, is just an euphemism for what we are truly dealing with, to wit crimes. For a specific illustration, let us examine the significance of “Specific Offense Characteristics” which usually accompany the “offense conduct” guideline. For bank robbery we have already identified Guideline § 2B3.1 which we now quote in its entirety as follows: § 2B3.1. Robbery (a) Base Offense Level: 18 (b) Specific Offense Characteristics (1) If the value of the property taken or destroyed exceeded $2,500, increase the offense level as follows: Loss Increase in Level (A) $2,500 or less no increase (B) $2,501-$10,000 add 1 (C) $10,001-$50,000 add 2 (D) $50,001-$250,000 add 3 (E) $250,001-$1,000,000 add 4 (F) $l,000,001-$5,000,000 add 5 Loss Increase in Level (G) More than $5,000,000 add 6 Treat the loss for a financial institution or post office as at least $5,000. (2) (A) If a firearm was discharged increase by 5 levels; (B) if a firearm or a dangerous weapon was otherwise used, increase by 4 levels; (C) if a firearm or other dangerous weapon was brandished, displayed or possessed, increase by 3 levels. (3) If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury: Degree of Bodily Injury Increase in Level (A) Bodily Injury add 2 (B) Serious Bodily Injury add 4 (C) Permanent or Life-Threatening Bodily Injury add 6 Provided, however, that the cumulative adjustments from (2) and (3) shall not exceed 9 levels. (4) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels. (5) If obtaining a firearm, destructive device, or controlled substance was the object of the offense, increase by 1 level. Now let us assume that a person is indicted for robbing a bank of an amount in excess of $10,000 while putting in jeopardy the life of a teller by the use of a dangerous weapon. Let us further assume that he is tried before a jury and convicted of the lesser included offense of bank robbery without the use of a dangerous weapon. Let us assume that the prosecution’s sentencing statement alleges that the defendant robbed the bank of the sum of $255,-000; that the defendant not only used, but discharged, a pistol, firing some shots into the air as he entered the bank; that when the robber pointed his gun at her, a terrified bank teller turned quickly, tripped and fell down the stairs breaking her hip and that this required an emergency operation. The defendant denies each of these allegations. What is the consequence if the government prevails on each of its factual contentions concerning “sentencing factors”? Answer: The base level will increase from 18 to 31 (assuming that breaking a hip is at least a “serious bodily injury”). Assuming no criminal history, this person, upon the basis of the facts established by the jury’s verdict, would have an offense level of 18 and face a sentence of between 27 and 33 months. Upon the basis of the findings of the various “specific offense characteristics,” his offense level rises to 31 which subjects him to a penalty of 108-135 months. Putting aside the fact that the sentence is being quadrupled on the basis of uncharged conduct (no grand jury) found by a single district court (no petit jury) applying some standard less than that of “beyond a reasonable doubt,” without the necessity of the formalities of any trial, with the defendant not necessarily having the right of confrontation, and without the necessity of applying even civil trial evidentiary standards, can it not be said without any doubt that the Sentencing Commission in defining “specific offense characteristics” is simply defining new crimes to which it then attaches specific penalties? If a person can be imprisoned and deprived of his liberty on the basis of such conduct for specific increments of time surely it must be because such conduct is criminal. But the Sentencing Commission would counter: “What’s new? Haven’t judges always done this in sentencing”? The answer is an emphatic, “No.” Of course judges take into consideration a myriad of facts and circumstances which are not charged in the indictment or information if those facts and circumstances are relevant to the sentence. Traditionally the judge examines the prior criminal record of the accused; his level of education and intelligence; his family and employment record; his medical history and, particularly, the presence or absence of drug or alcohol problems; whether a weapon was used in the commission of a crime; the impact upon the victim or victims; and so on virtually without limit (because no two cases are exactly alike). But what happens if such facts or circumstances are placed in issue by the defendant’s denial? It is believed that the usual practice is as follows. The defendant and his attorney are required to read the presentence report carefully. The first question asked at sentencing is: “Have you and your attorney carefully read and examined the presentence report?” After receiving an affirmative response the court then asks, “Are there any factual errors or mistakes in the report, regardless of how trivial or insignificant they may appear?” At this point each alleged error is noted and discussed. If a factor important to sentencing is not admitted, it simply is omitted from consideration. The Sentencing Guidelines do not seem to acknowledge this as typical standard current practice. In its commentary to § 6A1.3 it states that, “in current practice, factors relevant to sentencing are often determined in an informal fashion”. Yes, “informal” up to the point that the defendant denies the truth of a certain fact. There is no reason for courts not to consider admitted facts which are relevant to sentencing even though not charged. But when a fact which might result in an increased penalty is denied, it is submitted that under current practice judges ignore that fact and do not penalize the defendant therefor. Regardless, it is clear that under current practice there is nothing that requires a judge to add a specific penalty on the basis of a finding of any particular uncharged fact. This will not be so under the guidelines. The Guidelines System creates an entirely new system. The Commission acknowledges this when it states in its Commentary: The informality is to some extent explained by the fact that particular offense and offender characteristics rarely have a highly specific or required sentencing consequence. This situation will no longer exist under sentencing guidelines. The court’s resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment. Yes, under the new Guidelines system, the court’s resolution of disputed sentencing factors will have “a measurable effect” on punishment as is demonstrated in the example above. This is “what is new” beyond any doubt. Even if some judges under the old system would take into consideration such uncharged and denied conduct — and this is doubted — still the consequence thereof, if any, in the overall chemistry of sentencing would ordinarily be unascertainable. It should also be noted that the sentence under the Guidelines may be increased not only on the basis of uncharged conduct associated with the charged crime but also on the basis of uncharged post-conviction conduct, e.g., perjury, attempts to escape, and other obstructions of justice. Thus, through provisions of this kind the Guidelines define criminal conduct not previously defined by Congress. The Commissions actions do not fall within the category of subordinate rule making described in Panama Refining. Rather, they are in essence, new substantive laws which the Commission has adopted. The Court holds that the power to define criminal conduct was impermissibly delegated. The Sentencing Reform Act is distinguishable from other instances in which Congress arguably delegated the authority to define federal crimes. In several cases, for example, courts have upheld the delegation to various executive agencies to schedule drugs. See, e.g., United States v. Gordon, 580 F.2d 827, 839 (5th Cir.1978), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978); United States v. Pastor, 557 F.2d 930, 941 (2nd Cir.1977). Similarly, a delegation by Congress of the power to define explosives has been upheld. United States v. Womack, 654 F.2d 1034 (1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 314 (1982). These situations are examples of highly technical, rapidly changing fields in which Congress may delegate the power to “fill up the details”. Grimaud, 220 U.S. at 517, 31 S.Ct. at 483. Although the statutes arguably delegated the authority to define criminal conduct, they did so at a far different level than do the Guidelines. In the former cases, Congress had expressly defined criteria for scheduling drugs and for regulating explosives. All that remained was the fact finding and addition of new substances which conformed with the Congressional definitions. In the latter case, the Commission has established both the criteria and the details. Even assuming that delegation is permissible in the fields of setting criminal penalties and defining crime, Congress failed to provide adequate standards to guide the Sentencing Commission. In order to delegate its authority, particularly in an area affecting fundamental rights, Congress must declare a specific policy with respect to the issue involved and create standards to govern the actions of the delegatee. See Panama Refining, 293 U.S. at 415, 55 S.Ct. at 246. In other words Congress must clearly delineate the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. Am. Power and Light Co. v. Securities and Exchange Comm’n, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946). The existence of clearly delineated standards prompted the courts to uphold legislation delegating the authority to reschedule drugs and to add new drugs to existing schedules. One court discussed the elaborate scheme involved in the scheduling process. In order to add a drug to the control schedules, the Attorney General was required first to make a finding that the drug had a potential for abuse. Second, the Attorney General was required to make specific findings to determine in which schedule the drug belonged. Third, he was required to request, from the Secretary of Health Education and Welfare, a report on the drug and a scheduling recommendation. He was required to defer to some of the Secretary’s findings and recommendations. Pastor, 557 F.2d at 939. The Pastor court held that these procedures coupled with the availability of judicial review rendered the delegation constitutional. Id. at 941. The procedures described above differ markedly from the delegation struck down in Panama Refining. In that case, the Court reviewed section 9(c) of the National Industrial Recovery Act, (“NIRA”). That section authorized the President to prohibit the transportation, in interstate or foreign commerce, of “hot oil” — petroleum or petroleum products produced or withdrawn from storage in excess of the amounts permitted by state law. If a Presidential prohibition were issued, violation was made a misdemeanor. The Court stated: section 9(c) “gives the President an unlimited authority to determine the policy and lay down the prohibition, or not to lay it down, as he may see fit.” Panama Refining, 293 U.S. at 415, 55 S.Ct. at 246. Moreover, an introductory statement of purpose at the beginning of NIRA could not cure the improper delegation, because it did not set forth policies with sufficient clarity . The Court stated: To hold that [the President] is free to select as he chooses from the many and various objects generally described in the first section, and then to act without making any finding with respect to any object that he does select, and the circumstances properly related to the object, would be in effect to make the conditions inoperative and to invest him with an uncontrolled legislative power. Id. 293 U.S. at 431-432, 55 S.Ct. at 253. The creation of the Commission and the promulgation of the Sentencing Guidelines resemble the standardless delegation rejected in Panama Refining. In establishing the Commission, Congress set forth the purposes and duties of the Commission. First, Congress expressed its intent that the Guidelines should be mandatory. In other words, federal courts would be bound to follow them. 18 U.S.C.A. § 3553(b) (West Supp.1987). Congress further stated: (b) The purposes of the United States Sentencing Commission are to— (1) establish sentencing policies and practices for the Federal criminal justice system that— (A) assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code; (B) provide certainty and fairness in meeting the purpose of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and (C)reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process; and (2) develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purpose of sentencing as set forth in section 3553(a)(2) of title 18, United States Code. 28 U.S.C.A. § 991(b) (West Supp.1987). 18 U.S.C.A. § 3553(a)(2) (West 1985) defines the purposes of sentencing as, “(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” The Court concludes that these general statements only serve to document widely accepted penalogical goals, some at odds with others. These general provisions fail to channel the discretion of the Commission. Thus, the Court must determine whether other provisions in the Sentencing Reform Act provide adequate guidance to the Commission. The statute instructs the Commission to promulgate guidelines for use of a sentencing court in determining the sentence to be imposed in a criminal case. 28 U.S.C.A. § 994(a) (West Supp.1987). Congress expressed the view that “in many cases, current sentences do not accurately reflect the seriousness of the offense.” Therefore, as a starting point the Commission was directed to ascertain the average sentence imposed in various categories of cases prior to the Guidelines. 28 U.S.C.A. § 994(m) (West Supp.1987). This section however, does not obligate the Commission to use these findings in any way; thus, it does little to solve the delegation problems. An additional provision in the statute describes the permissible size of sentencing ranges if terms of imprisonment are imposed. The maximum range may not exceed the minimum by more than the greater of twenty-five percent or six months, except that, if the minimum term of the range is thirty years or more, the maximum may be life imprisonment. 28 U.S.C.A. § 994(b)(2) (West Supp.1987). At most, this section demonstrates Congress’ intent to decrease, but not eliminate completely, the discretion of sentencing judges. Had it wished, Congress could have directed the Commission to set mandatory sentences rather than sentencing ranges, precluding any Judicial discretion. Nevertheless, Congress delegated to the Commission the difficult choices of re-establishing sentencing policy. The fact that Congress provided for sentencing ranges within the guidelines and suggested the sizes of those ranges, does not alter the unconstitutionality of the policy delegation. Congress also expressed its view that the guidelines must be “neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.” 28 U.S.C.A. § 994(d) (West Supp.1987). A related provision discusses the importance of providing certainty in sentencing and reducing unwarranted disparity. 28 U.S.C.A. § 994(f) (West Supp.1987). These provisions state basic policy choices by Congress, but these choices are in the nature of general principles or platitudes. They are too general to give the Commission clear guidance as to the standards it should apply in drafting the Guidelines. At a superficial level, the statute appears to channel the Commission’s discretion. For example, it directs the Commission to consider the relevance of certain factors when establishing categories of offenses and defendants. 28 U.S.C.A. § 994(c) and (d) (West Supp.1987). The Commission, however, not Congress, has the final determination as to whether these factors are relevant. Id. Congress also authorized penalties at or near the maximum for certain classes of offender, and it instructed the Commission to sentence certain offenders to “substantial” terms of imprisonment. 28 U.S.C.A. § 994(h), (i) (West Supp.1987). Similarly, Congress instructed that the Guidelines reflect the general appropriateness of sentencing first offenders to punishments other than incarceration, except where they have been convicted of “serious offenses.” 28 U.S.C.A. § 994(j) (West Supp.1987). Congress, through the use of abstract terms, has delegated its authority while appearing to regulate the Commission. For example, terms such as “substantial terms of imprisonment” and “serious offenses” are not defined. Rather, the Commission has been provided with vague directives and virtually total discretion to define terms as it wishes and rewrite Federal penal law. In addition, Congress stated that the Guidelines were to be formulated “to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.” 28 U.S.C.A. § 994(g) (West Supp.1987). On the surface, it would appear that Congress had assigned a fact finding task to the Commission, a permissible delegation. However, only the Commission is given the duty of interpreting given facts to arrive at a legislative mandate. Once again, Congress has delegated significant legislative authority to this unelected body. To sum up, ours is a representative democracy. The people choose their legislative representative and vest in them the powers to make the laws which will govern us. As stated by John Locke the people do not vest their elected legislators with the power to “make [others] legislators; the legislature has no power to transfer their authority of making laws and place it in other hands.” At least this is true in core areas, such as this, where the most fundamental of our constitutional rights are implicated. What is more important than our personal freedom and liberty? Who shall determine the conduct that will warrant the loss of that freedom? And who shall determine the penalties that may be imposed for such acts? Congress in its understandable frustration has attempted to take itself out of the crime and punishment business. But as unpleasant as the job may be, it is only the Congress — not the President, not some administrative agency (whether called “judicial” or “executive”), not the courts — that, under our Constitution may determine what conduct shall constitute a crime and what the penalty shall be. Therefore, the delegation here violates the Constitution. In a different context, Chief Justice Rehnquist made a statement which this Court finds applicable to the present situation; “It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult if not impossible, to hammer out in the legislative forge.” Indust. Union Dept. v. Am. Petroleum Inst., 448 U.S. 607, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (Rehnquist J., concurring). The Court holds that Congress, rather than an unelected administrative commission, must decide these crucial issues of Federal law. PRESENTMENT Promulgation of Sentencing Guidelines by the Commission also violates principles of bicameralism and presentment. The Constitution states that the Congress of the United States shall consist of both a House of Representatives and a Senate. United States Const., Art. 1 § 1. In addition, the Constitution requires that every bill which has passed both houses shall be presented to the President. See United States Const. Art. I § 7, el. 2. The legislative steps outlined in Article I are not empty formalities; they were designed to assure that both Houses of Congress and the President participate in the exercise of lawmaking authority. Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 2788 n. 28, 77 L.Ed.2d 317 (1983). Even assuming that the delegation of Congress’ authority to the Sentencing Commission is valid, if the promulgation of the Guidelines is deemed a “legislative act”, then before the Guidelines can become law they must be passed by both Houses of Congress and presented to the President as specified in Article I. United States v. Johnson, 682 F.Supp. 1033 (W.D.Mo.1988) (en banc) (Wright, J. dissenting). The fact that Congress provided that the Guidelines were to become law if Congress failed to disapprove or to modify them does not remedy the Article I violation. Id. See Chadha, 103 S.Ct. at 2788 (To allow Congress to evade the strictures of the Constitution and in effect enact Executive proposals into law by mere silence cannot be squared with Art. I). As this Court discussed above, the work of the Sentencing Commission was legislative in character. First, the Commission arguably created new substantive criminal offenses, a function traditionally performed by Congress. Second, the Commission established new penalty ranges for existing Federal offenses and fixed penalties for the new crimes it created, also a task traditionally performed by Congress. Third, as pointed out by District Judge Wright in a recent opinion discussing the Guidelines, “[t]he primary purpose of the Guidelines is to curtail the previously broad sentencing discretion of Article III Judges.” Johnson, at 1037 (Wright, J. dissenting). Congress has delegated the authority to regulate Federal Judges to a Presidentially appointed Commission. Id. “Surely, any Congressional limitations on the sentencing discretion of federal judges, under a previous grant of Congressional authority, can only be accomplished via a legislative act, requiring passage by both Houses and presentment to the President.” Id. Because the Guidelines are mandatory and bind the Federal Judiciary, their adoption constitutes a legislative act which must comply with Article I. Because they have not been enacted by both Houses of Congress and presented to the President, they have not become law. PLACEMENT OF THE COMMISSION The Court holds that placement of the Sentencing Commission within the judicial branch violates the Constitution. Congress created the Commission as “an independent commission in the judicial branch of the United States”. 28 U.S.C.A. § 991(a) (West Supp.1987). The Commission, however, does not exercise Article III powers. It does not adjudicate cases or controversies. See United States v. Smith, 686 F.Supp. 847, 862 (D.Colo.1988). The only function performed by the Commission which is arguably judicial is found at sec. 994(s). That section provides, “The Commission shall give due consideration to any petition filed by a defendant requesting modifications of the guidelines utilized in the sentencing of such defendant, on the basis of changed circumstances unrelated to the defendant, including changes in — (1) the community view of the gravity of the offense; (2) the public concern generated by the offense; and (3) the deterrent effect particular sentences may have on the commission of the offense by others.” 28 U.S.C.A. § 994(s) (West Supp.1987). Even this arguably judicial function when performed by the Commission violates Article III. In Northern Pipeline v. Marathon Pipe Line, 458 U.S. 50, 59, 102 S.Ct. 2858, 2865, 73 L.Ed.2d 598 (1982), the Court stated, “The judicial power of the United States must be exercised by courts having the attributes prescribed in Art. III.” Those attributes are life tenure and fixed and irreducible compensation for their services. Id. The commissioners who are not judges clearly enjoy neither Art. Ill safeguard. They are removable by the President and thus they are not assured of compensation. This fact alone precludes valid placement of the Commission within the judiciary. Arguably, the commissioner judges also lack Article III safeguards. First, they perform their duties as commissioners rather than as judges. See United States v. Ferreria, 54 U.S. (13 How.) 40, 47, 14 L.Ed. 40 (1851). Thus, the judges may be removed from their capacity as commissioners by the President. This possibility does not deprive the Judges of life tenure, but it potentially compromises their independent position so as to weaken the guarantee that life tenure was intended to establish. Second, the Sentencing Reform Act creates the potential for a violation of Art. III’s compensation clause. The Act authorizes payment of voting commissioners at the rate paid to judges on the United States Courts of Appeals. 28 U.S.C.A. § 992(c). Thus, if a district court judge is appointed to the commission, he receives a salary increase subject to the President’s removal power. These factors underscore the control exercised by the Executive over the commission. Such Executive control over the judicial branch is unconstitutional. Having determined that the commissions placement within the judiciary violates the constitution, the Court must decide whether that unconstitutional placement can be severed from the Act. The inquiry is whether the statute, minus the unconstitutional portion, “will function in a manner consistent with the intent of congress.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S.Ct. 1476, 1481, 94 L.Ed.2d 661 (1987). The Court concludes that the statutory provision placing the commission within the judiciary is severable. The Commission may still perform its statutory mandate if placed in the executive branch. In fact, by promulgating the guidelines it has already accomplished a substantial portion of its responsibilities. The fact that the placement of the commission does not invalidate the statute does not mean that the difficulties associated with the creation of the commission should be disregarded. As will be discussed below, many factors which counsel against placement in the judiciary will recur in the separation of powers context. SEPARATION OF POWERS The composition of the Sentencing Commission, particularly the inclusion of Art. Ill Judges on it, violates well established principles of separation of powers. The Constitution prohibits serious encroachment by members of one governmental branch into the affairs of another. See Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 3192, 92 L.Ed.2d 583 (1986); Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923); see also Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (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.). To put it another way, the Separation of Powers Doctrine is violated when Article III judges are entrusted with a function properly assigned to another branch. See In re Sealed Case, 838 F.2d 476, 511 (D.C.Cir.1988); See also Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980) (federal courts violate separation of powers when they impose punishments not authorized by Congress). The declared purpose of separating and dividing the powers of government, of course, was to “diffuse power the better to secure liberty.” Bowsher, 106 S.Ct. at 3186 (quoting Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952)). James Madison wrote: “[W]ere the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were if joined to the executive power, the judge might behave with all the violence of an oppressor." The Federalist, No. 47, at 326 (J. Madison) (J. Cooke ed. 1961) (emphasis in original) (quoting Montesquieu) quoted in In re Sealed Case, 838 F.2d at 516. Certainly, the Constitution does not hermetically seal the branches of government, but the extreme intrusion into legislative and or executive matters by members of the judiciary inherent in the promulgation of the Guidelines, exceeds all permissible limits. In their service on the sentencing commission, Article III judges perform a nonjudicial function. “The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts.” Mellon, 262 U.S. at 488, 43 S.Ct. at 601. Article III limits the judiciary to the decision of cases or controversies. In the criminal context, “the constitutional scheme is as simple as it is complete — Congress passes the criminal law in the first instance, the President enforces the law, and individual cases are tried before a neutral judiciary involved in neither the creation nor the execution of the law.” In re Sealed Case, 838 F.2d at 489. While the legislative function consists of “laying down new rules to guide future action,” the judicial function is “confined to definition and protection of existing rights.” Keller v. Potomac Elec. Power Co. 261 U.S. 428, 440, 43 S.Ct. 445, 447-48, 67 L.Ed. 731 (1923). “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 73, 53 L.Ed. 150 (1908). On several occasions, the Supreme Court or its Justices have noted the inappropriateness of allowing judges to perform functions outside the adjudication of cases or controversy. In Hayburns case, 2 U.S. (2 Dall.) 409, 1 L.Ed. 436 (1792), an act of Congress required the Circuit Courts of the United States to examine pension claims of Revolutionary war veterans and to determine the proper amount to be paid. The court’s decisions were to be certified for review to the Secretary of War. The Attorney General sought a writ of mandamus to compel the Circuit Courts to fulfill their duty under the act. Although the Supreme Court never decided the issue, the opinions of some of the Justices, serving in their capacities as circuit court judges, are instructive. The Circuit Court for the District of New York stated: [B]y the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose encroachments on either.... [NJeither 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.... [T]he duties assigned to the circuit, by this act, are not of that description. Id. at 409 n. a (emphasis in original). Before the Court could reach the merits in Hayburn’s case, Congress repealed the act at issue and established an alternative system for review of pension claims. That fact shows that Congress and the President agreed that the act had conferred a nonjudicial power. United States v. Ferreria, 54 U.S. (13 How.) 40, 49, 14 L.Ed. 40 (1851). Similarly, in Ferreria, a treaty and enabling statute authorized judges to determine injuries suffered by Spanish soldiers in Florida, subject to review by the Secretary of the Treasury. The Court stated: [I]t is manifest that this power to decide upon the validity of these claims, is not conferred to them as a judicial function, to be exercised in the ordinary forms as courts of justice. For there is to be no suit; no parties in the legal acceptance of the term, are to be made — no process to issue; and no one is authorized to appear on behalf of the United States, or to summon witnesses in the case. Id. at 46. Rather than the judicial function of deciding cases and controversies, the authority conferred upon the judges was “nothing more than that of commissioners to adjust claims against the United States.” Id. at 47. In Keller, a statute enabled the Power Commissioner of the District of Columbia to invoke the advice of the District Supreme Court upon the elements in value to be considered in arriving at a true valuation of the property of a utility. Keller v. Potomac Elec. Co., 261 U.S. 428, 439, 43 S.Ct. 445, 447, 67 L.Ed. 731 (1923). The Court held that the statute brought courts into the legislative field of fixing rates. Id. at 442, 43 S.Ct. at 448. It stated, “We can not escape the conclusion that Congress intended that the court shall revise the legislative discretion of the commission by considering the evidence and full record of the case and entering the order it deems the Commission ought to have made.” Id. Congress’ broad authority to regulate the District of Columbia lent the statute a measure of validity, but the Supreme Court refused to consider an appeal from a court acting in a legislative capacity such as this. Id. at 443, 43 S.Ct. at 448-49. In In re Sealed Case, 838 F.2d 476 (D.C.Cir.1988), the court considered the constitu tionality of the Ethics in Government Act. That act empowered the Attorney General to make preliminary investigations of suspected wrong doing in the government. If his investigations persuaded him that there were reasonable grounds to believe that further investigations were warranted, then he was required to refer the matter to the Independent Counsel Division of the United States Court of Appeals (the “Special Court”). The “Special Court”, under the act, appointed an independent counsel to conduct further investigation. In addition to appointing the independent counsel, the “Special Court” defined the jurisdiction of the investigation and received the counsel’s reports. When the “Special Court” concluded that all the independent counsel functions had been discharged, it could terminate the investigation and the office of independent counsel. The court held that the assignment of these tasks to an Article III court was unconstitutional. It based this holding on the fact that the act involved the “Special Court” in the non-Article III task of supervising the day-to-day activities of an Executive Branch official. The courts stated “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 adjudicatory functions.” Id. at 512, (quoting F. Frankfurter, Advisory Opinions, in 1 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 475, 478 (1930)). It also noted “Where there is no law to apply and where a decision necessarily involves a paradigmatic political choice to allocate societal resources one way rather than another, a court must inevitably act ‘under' compulsion and motives that have no relation to performances of our Article III functions.’ ” Id. at 514, (quoting Vermont v. New York, 417 U.S. 270, 277, 94 S.Ct. 2248, 2252, 41 L.Ed.2d 61 (1974)). The above examples persuade this Court that the Sentencing Commission, and its judicial members, have acted in a non-judicial manner. In fact, the Commission’s activities are more clearly legislative in character than those described above. The activities also arguably share Executive qualities as well. A majority of the Commission is composed of executive officials, and the power of appointment and removal are possessed by the President. First, the Commission is directed to “establish” sentencing policies and practices. 28 U.S.C.A. § 991(b) (West Supp.1987). Therefore, the Commission possesses far more legislative discretion than did the judges in Keller, Ferreria, or Haybum’s case. Second, in promulgating the Guidelines, the Commission was given a virtually clean slate. It was not constrained by individual claims or circumstances, as were the judges in the above cases. The Court holds that the Commission’s broad authority allows its member judges, impermissibly, to encroach into the legislative domain. These judges perform functions outside the boundaries of Article III, properly performed by either the legislature or executive branch. In addition, the control exercised by members of the executive branch over the Commission’s activities render those activities outside of the judicial sphere. In Hayburn’s case, the circuit Court for the District of New York stated: [T]he duties assigned to the circuit, by this act are not [judicial] ... insomuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the secretary at war, and then to the revision of the legislature; whereas by the constitution, neither the secretary at war, nor any other executive officer, nor even the legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court. Hayburn’s case, 2 U.S. (2 Dall.) at 409 n. a. Similarly, the Ferreria, Court stated that when the Secretary of the Treasury had final review authority of court decisions fixing claims against the United States, the courts were not making final judicial determinations. Ferreria, 54 U.S. (13 How.) at 46. In sum, when executive officials have final authority over the decisions of judges, the decisions fall outside of the independent judicial power contemplated by Article III. The majority of voting members on the Commission are members of the executive branch. In addition, the Attorney General acts as a nonvoting member, adding to the dominance of the executive branch. Finally, the President has removal power over all commissioners, including the Article III judges. Therefore, in performing their duties on the Sentencing Commission, Article III judges have impermissibly acted in a non-judicial fashion. The above discussion does not mean that Article III judges are strictly limited to the function of deciding cases. They may Constitutionally perform the administrative function of making rules necessary “for the effective and expeditious administration of the courts”. Chandler v. Judicial Council to 10th Cir. of U.S., 398 U.S. 74, 90 S.Ct. 1648, 1654, n. 7, 26 L.Ed.2d 100 (1970). Judges do not violate separation of powers principles when they participate in ancillary court management tasks. In re Matter of Certain Complaints under Investigation, 783 F.2d 1488, 1503 (11th Cir.1986), cert. denied, 477 U.S. 904, 106 S.Ct. 3273, 91 L.Ed.2d 563 (1986). The test for permissibility is whether a rule formulated by judges “really regulates procedure,— the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.” Sibbach v. Wilson & Co., 312 U.S. 1, 14, 61 S.Ct. 422, 427, 85 L.Ed. 479 (1941); See Hastings v. Judicial Conference of U.S., 770 F.2d 1093, 1108 (D.C.Cir.1985) (Edwards, J. concurring), cert. denied, 477 U.S. 904, 106 S.Ct. 3273, 91 L.Ed.2d 563 (1986) (“Congress has the power to establish (or authorize the judiciary to establish) purely administrative, “housekeeping” procedures — such as procedures for managing dockets and assigning cases — that authority does not necessarily extend beyond such administrative matters.”). The procedures enacted by judges must have the sole purpose of promoting the effective and expeditious administration of the business of the courts. Compare In re Matter of Certain Complaints, 783 F.2d at 1505 (investigation by a committee of judges into the conduct of another judge with the purpose of promoting judicial efficiency constitutional) with In re Application of President’s Comm’n on Organized Crime Subpoena of Scaduto, 763 F.2d 1191, 1197 (11th Cir.1985) [hereinafter Scaduto] (service by judges on a Presidential Commission with the purpose of law enforcement unconstitutional). Although the line between permissible judicial rule making, ancillary to court business, and impermissible judicial encroachment into other branches of government, may be hard to draw, there can be no doubt that the work of the Sentencing Commission falls on the impermissible side. The purpose of the Commission is to establish sentencing policies and practices for the Federal criminal justice system. 28 U.S.C. A. s. 991(b) (West Supp. 1987). Admittedly, some of the “practices” contemplated by the Act may qualify as the type of procedural rules which judges may enact. Nevertheless, the Commission’s mandate extends well beyond procedures. See Miller v. Florida, — U.S. —, 107 S.Ct. 2446, 2453, 96 L.Ed.2d 351 (1987) (holding that a change in Florida’s Sentencing Guidelines which had the effect of increasing the defendant’s sentence were substantive law rather than procedural rules). First, the Commission possesses broad investigatory powers not normally associated with the judiciary. Scaduto, 763 F.2d at 1197, n. 7. Second, as discussed above, the Commission has, in essence, adopted legislation as to criminal penalties. The court concludes that the work of the Commission does not fall in the area of permissible procedural rule making or Court related investigatory work in which judges may constitutionally engage. Because the Court holds that the judges serving on the Sentencing Commission have acted in a non-judicial fashion, it must now address the question of whether such service disrupts the function of the judicial branch. Nixon v. Adm’r of Gen. Services, 433 U.S. 425, 97 S.Ct. 2777, 2788, 53 L.Ed.2d 867 (1977). The Court must determine whether judicial service on the Commission disrupts the proper balance between the coordinate branches or prevents the judicial branch from accomplishing its constitutionally assigned functions. Scaduto, 763 F.2d at 1195. The Court concludes that the judicial service at issue here significantly interferes with the impartiality of the judiciary. In a case with facts similar to those here, a separation of powers violation was held to exist. In Scaduto, the eleventh Circuit held that service by an active appellate court judge and a retired Supreme Court Justice, on the President’s Commission on Organized Crime violated the Separation of Powers Doctrine. Id. at 1197. The Commission on Organized Crime was given the task of advising the President and Attorney General on how to improve efforts against organized crime and recommending improvements in the legislative, administrative, and judicial treatment of organized crime. Congress determined the Commissioners to be law enforcement officers. In its discussion of possible interference with the judicial function caused by participation of judges on the Commission, the Scaduto court stated: Impartiality is one of the central, constitutionally ordained, requirements of the federal judicial office, ... and this impartiality is threatened by many of the activities of the Commission. A judge who is charged with assisting and improving enforcement efforts against organized crime must adopt a pro-government perspective which is ill-suited to his obligation to be neutral in the courtroom. The kind of information he might uncover through the investigatory activities of the Commission would further endanger his impartiality. If the data and testimony surveyed by the Commission were to demonstrate, for example, that the magnitude of the threat posed by organized crime was greater than had previously been suspected, that a substantial amount of organized crime activity was never prosecuted, or that law enforcement officials in many parts of the country employed methods which were poorly chosen, subject to abuse or inadequate to combat the problem, such discoveries could affect