Full opinion text
MARCUS, District Judge. At issue today is a constitutional challenge to the validity of the Sentencing Guidelines (“Guidelines”) promulgated by the United States Sentencing Commission (“Commission”) pursuant to the Sentencing Reform Act of 1984 as amended (“Act”). Pub.L. No. 98-473, Title Ii; 98 Stat. 1976, 2017 (1984), amended by Sentencing Act of 1987, Pub.L. No. 100-182, 101 Stat. 1266 (1987). We are called upon to decide the validity of an Act of Congress, one of the “gravest and most delicate” tasks that a Court will ever face. See Rostker v. Goldberg, 453 U.S. 57, 65, 101 S.Ct. 2646, 2652, 69 L.Ed.2d 478 (1981). Because of the paramount importance of the issue to this district in particular, as well as our desire to promote procedural uniformity and avoid disparate sentencing, we decided to hear these cases en banc. See United States v. Anaya, 509 F.Supp. 289, 293-94 (S.D.Fla.1980) {en banc), aff'd sub nom. United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir.1982). Eight cases were consolidated for the purposes of deciding this issue. Argument was taken before the full Court on April 21, 1988. The Act was promulgated as part of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, and reflects a substantial effort to remedy unwarranted disparities in sentencing. In furtherance of the establishment of a uniform determinate federal sentencing system, the Act establishes a Commission to promulgate for all federal crimes binding rules, characterized as “Guidelines,” and non-binding interpretive commentary and policy statements. The Guidelines essentially create, for each criminal offense, a narrow sentencing range that reflects the characteristics of the defendant, and the circumstances of the offense, and severely restricts the sentencing discretion now employed by federal judges. The Guidelines became effective on November 1, 1987, and apply to crimes committed after that date. The Defendants and amicus curiae, the National Association of Criminal Defense Lawyers, challenge the constitutionality of the Guidelines for three basic reasons: first, they contend that the creation of the Commission and its placement in the judicial branch violates the separation of powers principle because the function of issuing general rules fixing punishment belongs to the legislative branch of government and may not be exercised by Article III judges, especially in concert with the executive branch of government; second, they argue that Congress cannot delegate this “core” legislative function at all, but that even if the legislative branch could accomplish such a delegation, this Act is so lacking in intelligible principles and rules as to be standardless and thereby unconstitutional; finally, they claim that the creation of binding Guidelines strips the sentencing judge of discretion in imposing sentence and therefore violates the Defendants’ due process rights. The Department of Justice has conceded that the placement of the Commission in the judicial branch of government impermissibly violates separation of powers principles, because it regards the issuance of sentencing guidelines, within the framework of the enabling legislation, to be exclusively an executive prerogative. The Department has argued, however, that the Commission’s placement in the judicial branch may be remedied simply by recasting the Commission as executive in nature and housing it within that branch of government. Finally, the Commission, appearing as amicus curiae, has argued that “Congress may constitutionally create an independent body in the judicial branch that is authorized to perform the special sort of activity at issue here — rulemaking that is in aid of the judicial function of pronouncing sentence, and that is intended to rationalize and control the delegated sentencing discretion of federal judges.” [Memorandum of the United States Sentencing Commission as Amicus Curiae In Support of the Constitutionality of the Sentencing Guidelines at 2.] [hereinafter “Commission Brief”]. In the alternative, the Commission and the Department have asserted that even if some constitutional infirmity is founded on the placement of the Commission in the judicial branch, the Commission may be recognized constitutionally as an independent regulatory agency. In spite of the great deference we accord the judgment of Congress, Rostker, 453 U.S. at 65, 107 S.Ct. at 2652, and the wisdom and skill with which the Commission undertook to accomplish its mission, we believe that the placement of the Commission in the judicial branch of the United States and the requirement that its function must be performed by at least three federal judges collide fundamentally with the doctrine of separation of powers, and hold that the Guidelines are unconstitutional on that ground. The unprecedented rulemaking authority vested in the Commission is sweeping in its breadth, and ongoing in nature; within the ambit of the enabling legislation, the Commission has been given the plenary authority to fix the level of punishment across the entire spectrum of the federal criminal code, and, over many years, to amend these general and prospective rules as the wisdom of time and experience and study may dictate. The task conferred upon this Commission — to ordain and properly apportion punishment —necessarily requires the assessment of disparate theories of penology, the selection of basic choices, and the allocation of scarce governmental resources. We think the Commission has been called upon to make the kinds of sensitive, political and general policy determinations that the judicial branch of government is least equipped to make. Simply put, we do not believe that judges may be called upon in this context to write the very laws they must apply. The problems inherent in calling upon judges to fix the general rules of punishment are exacerbated still further where, as here, the judges are asked to write these rules' in concert with commissioners selected by the executive branch. This collaborative rule-making effort between the judicial and executive branches of government casts too long a shadow over the independence and impartiality of the entire federal judiciary. And we can find in the Act no overriding need to justify so unprecedented an expansion of the mass of power conferred upon the judicial branch. Because this Court has concluded, with the greatest reluctance, that the Guidelines violate the basic principles of separation of powers, we do not reach the delegation of power and due process issues. I. The eight criminal cases before us are at various stages of the adjudicative process. While all of the defendants have raised the issue of the constitutionality of the Guidelines, we find that only those defendants who have been found guilty and would be sentenced under the Guidelines present a ripe issue. Six of the defendants have been adjudicated guilty: 1. United States v. Bogle, 87-856-CR-MARCUS On November 18, 1987, Beverly Bogle was charged in a two-count indictment with the importation of at least five hundred grams of cocaine, and with possession with the intent to distribute at least five hundred grams of cocaine. 21 U.S. C. §§ 841(a)(1), 952(a). The offenses were committed at Miami International Airport, on November 11, 1987. Defendant Bogle pleaded guilty to the importation charge on January 11, 1988. The government agreed to dismiss the possession charge after sentencing. 2. United States v. Eutsey, 87-858-CR-KEHOE On November 18,1987, a federal grand jury charged Marianne Eutsey with knowingly and intentionally importing at least five hundred grams of cocaine, and with possessing with the intent to distribute at least five hundred grams of cocaine. 21 U.S.C. §§ 841(a)(1), 952(a). The offenses were committed on November 12, 1987 at Miami International Airport. Defendant Eutsey was found guilty of both counts in a trial before a jury on January 3, 1988. 3. United States v. Paul, 87-855-CR-ARONO VITZ Marie D. Paul was charged by indictment on November 18, 1987, with the importation of a quantity of cocaine, and with possession with the intent to distribute the same quantity of cocaine. 21 U.S.C. §§ 841(a)(1), 952(a). On January 7, 1988, a jury returned a verdict of guilty on both counts against this defendant. 4. United, States v. Roberts, 88-006-CR-RYSKAMP On January 7, 1988, Steven M. Roberts, James L. Roberts, and Harold Joseph Kelly were charged in an information with conspiracy to pass, utter, and keep in possession counterfeit Federal Reserve Notes. 18 U.S.C. §§ 371 and 472. On January 7, 1988, these three defendants waived indictment and entered pleas of guilty. 5. United States v. Peoples, 87-848-CR-KEHOE On November 13,1987, a federal grand jury charged Yolanda Rogers Peoples with the importation of at least five hundred grams of cocaine, and with possession with the intent to distribute at least five hundred grams of cocaine. 21 U.S. C. §§ 841(a)(1), 952(a). The offenses occurred on November 5, 1987. On January 8, 1988, Defendant Peoples pleaded guilty to the importation charge. The government agreed to dismiss the possession count at sentencing. 6. United States v. Gomez, 87-964-CR-HASTINGS On December 16, 1987, Augusto Gomez was arrested, and on December 22, 1987 charged with the importation of at least five hundred grams of cocaine and with possession with the intent to distribute at least five hundred grams of cocaine. 21 U.S.C. §§ 841(a)(1), 952(a). Defendant Gomez pleaded guilty to the possession count on March 14, 1988. The government agreed to dismiss the importation charge at sentencing. Moreover, the government also agreed to recommend a two-level reduction in the Defendant’s base offense level under the Guidelines, based upon the Defendant’s acceptance of responsibility pursuant to section 3E1.1 of the Guidelines. The government further agreed to recommend a sentence at the lower end of the Guideline range applicable to the Defendant. Two of the defendants have been charged with federal crimes but not convicted: 1. United States v. Peña, 88-14001-CR-DA VIS On February 16, 1988, Rafael Peña was charged in a three-count indictment with: conspiracy to import at least one hundred kilograms of marijuana; 21 U.S. C. §§ 952(a), 963; importation of at least one hundred kilograms of marijuana; 21 U.S.C. § 952(a); and distribution of at least one hundred kilograms of marijuana while on board an aircraft registered in the United States. 21 U.S.C. § 959(b)(1). The indictment alleges that the substantive acts occurred on February 3,1988. Defendant Peña pleaded not guilty to all three counts on February 17, 1988, and demanded a jury trial. 2. United States v. Fogel, 88-8019-CR-DA VIS Alan Fogel and two other individuals were charged on November 13, 1987 in a three-count indictment with: conspiracy to import at least five kilograms of cocaine; 21 U.S.C. § 963; conspiracy to possess with intent to distribute in excess of five hundred grams of cocaine; 21 U.S.C. § 846; and possession with intent to distribute in excess of five hundred grams of cocaine. 21 U.S.C. § 841(a)(1). On March 2, 1988, Defendant Fogel was arraigned and pleaded not guilty to the charges alleged in the indictment. The Constitution limits the power of the federal courts to the adjudication of “cases” or “controversies.” U.S. Const, art. Ill, § 2. Accordingly, there has developed a number of corollary principles by which the courts ensure that the decision rendered is given effect through the resolution of an actual conflict and is not merely advisory. Rejection of an issue for want of ripeness means that the circumstances of the case have not advanced to the point of sufficient concreteness and specificity to justify review. The ripeness doctrine, then, prevents “the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreemerits____” Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The issue of the constitutionality of the Guidelines is ripe with respect to those defendants who have pleaded or have been found guilty: Bogle, Eutsey, Paul, Roberts, Peoples, and Gomez. Each of these defendants has a sufficient stake in the outcome of this controversy so as to assure “that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); see also Blanchette v. Connecticut General Insurance Corps., 419 U.S. 102, 143 & n. 29, 95 S.Ct. 335, 358 & n. 29, 42 L.Ed.2d 320 (1974). In each of these cases, based upon the recommendations of the Probation Department, each defendant would be subject under the Guidelines to an applicable sentencing range that would exceed the sentence for which they would be eligible under preGuidelines law. The same degree of concreteness does not exist as to Defendants Peña and Fogel. While both Peña and Fogel have been indicted, they have pleaded not guilty and have not been adjudicated guilty. That the Guidelines will be applied to these two defendants is not inevitable, but purely speculative. A jury could find Peña or Fogel not guilty; alternatively the government could fail to make out a prima facie case; or a pre-trial motion could be granted entirely disposing of the outstanding charges. Thus, the motions of these defendants to declare the Guidelines unconstitutional are based upon “ ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 3332-38, 87 L.Ed.2d 409 (1985) (quoting 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3532, at 112 (1984)); see also Poe v. Ullman, 367 U.S. 497, 507, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961). But see United States v. Ruiz-Villanueva, 680 F.Supp. 1411 (S.D.Cal.1988); United States v. Arnold, 678 F.Supp. 1463 (S.D.Cal.1988). Defendant Peña contends, however, that the Guidelines affect him adversely at this stage because under the Guidelines there is substantial uncertainty as to the wisdom of negotiating a plea agreement. According to Peña, his counsel is unable to fully advise him whether to enter a guilty plea, cooperate with government investigations, participate in plea negotiations, or risk the uncertainties of a trial. We are unpersuaded by this argument. We can find no basis for the claim that the defendant is entitled to an advisory decision by this Court to assist him in making a decision about whether to accept a possible plea bargain. Insofar as the defendant faces a hardship from deferring a decision until the dispute has become concrete, that dilemma is no different from any other legal issue as to which a defendant might deisre but is not entitled in advance to a judicial determination. Moreover, defendant Peña’s argument somehow assumes that there was greater certainty in sentencing when judges had broader discretion, than under the formulae of the Guidelines. This is decidedly not the case. Rather, the Guidelines offer defendants much greater certainty and predictability in assessing their potential sentences. Under the Guidelines, a sentencing range is calculated by taking into consideration the offense, the defendant’s role in the criminal activity, whether the defendant obstructed the proceedings, whether the defendant accepted responsibility, and the defendant’s criminal history. Each factor is assigned a numerical value, dependent upon the factual circumstances particular to the offense. Then, based upon the Guidelines’ matrix, a sentencing range is determined. One of the goals of the Guidelines — to “provide certainty ... in meeting the purposes of sentencing____” 28 U.S.C. § 991(b)(1)(B) — has been achieved by severely restricting the discretion of the district court in meting out a sentence. See United States v. Tolbert, 682 F.Supp. 1517 (D.Kan.1988); United States v. Frank, 682 F.Supp. 815 (W.D.Pa.1988). Therefore, in view of the codified factors that necessarily determine the computation of a sentencing range under the Guidelines, a defendant may predict his or her potential sentencing range with far greater accuracy than under the pre-Guideline law. Finally, inasmuch as some of the cases présently before the Court are clearly in a posture ripe for decision, we believe the public interest would be served best by treating only those cases where the impact of the Guidelines are most concrete and immediate. Accordingly, we decline to render a decision as to the claims of Defendants Peña and Fogel. ii. The issues raised in this controversy go to the heart of American constitutional government and require an examination of principles fundamental to our polity. Of critical importance to this inquiry is the Framer’s belief that the forms of political power must be separate for [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many ... may justly be pronounced the very definition of tyranny. The Federalist No. j7, at 301 (J. Madison) (C. Rossiter ed. 1961). The parties and amici curiae have disagreed as to these basic questions: first, upon which branch of government has the Act conferred power; and second, the nature of the power actually given to the Commission. A. In essence the Act and the establishment of the Commission reposes both legislative and executive functions within the judicial branch by requiring it to create rules which effectively fix the level of punishment for the entire panoply of crimes contained in the federal criminal code. Moreover, the Act requires the collaboration of the judicial and executive branches in the formulation of fundamental policy decisions. It formally requires, by its express terms, the institutional involvement of the judiciary in appointing the Commissioners and developing and administering the Guidelines. The explicit language of the statute, the structure actually created, and ample legislative history manifestly establishes the extensive interaction between the judicial branch of government and this Commission. The judge/commissioners are selected and serve on the Commission precisely because they are federal judges, and their ongoing involvement squarely implicates the entire judiciary. First, the Commission has been “established as an independent commission in the judicial branch of the United States____” 28 U.S.C. § 991(a) (emphasis added). This is a powerful indication that Congress intended the power of the Commission to reside with the judiciary and we are loathe to impose a contrary interpretation where Congress has made so patent an expression of its will. Moreover, the placement of the Commission in the judiciary is not a minor piece of draftsmanship, but rather an expression of Congress’ view of the proper role of the judiciary. “Placement of the Commission in the judicial branch is based upon the Committee’s strong feeling that, even under this legislation, sentencing should remain primarily a judicial function.” S.Rep. No. 225, 98th Cong., 1st Sess. 159, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3342 [hereinafter S.Rep. 225]. Second, individual judges as judges are integrated into the procedures established by the Act. The Act requires that three of the seven voting members of the Commission “shall be federal judges.” 28 U.S.C. § 991(a). That is, absent membership by at least three federal judges, the Commission could not function under the current legislation. In fact, all seven commissioners could theoretically be federal judges. This provision does not merely suggest participation by federal judges or contemplate that persons appointed by the President as Commissioners, may, in some circumstances, be federal judges. Instead, this legislation requires the participation of federal judges because of the fact that they are judges. Contentions that the judge/commissioners serve voluntarily are severely undercut by this provision. While the decision of an individual judge to serve ultimately may be a voluntary choice, three such “volunteers” must be recruited or the legislation would be rendered inoperative. This provision is another clear indication that Congress meant to delegate rulemaking authority to the judiciary. The Commission’s seven voting members are appointed by the President, with the advice and consent of the Senate, and may be removed by the President “only for neglect of duty or malfeasance in office or for other good cause shown.” 28 U.S.C. § 991(a). The Attorney General or his designee, as well as the Chairman of the United States Parole Commission, are ex officio, non-voting members of the Commission. We add that the Commission may act only by an affirmative vote of at least four voting members. 28 U.S.C. § 994(a). Also, the fact that the commissioners may be removed by the President only for cause, indicates that they are not directly controlled by the executive, see Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958); Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), and lends support for the assertion that the judges remain in the judiciary, rather than function as members of the executive branch, even when acting as commissioners. Individual judges also are implicated in this legislation in more subtle ways. All federal judges are required to submit to the Commission a written report on each sentence imposed. 28 U.S.C. § 994(w). Further, the salaries of the commissioners are tied directly to the salaries of judges of the United States Courts of Appeals. Accordingly, any district judge who is named to the Commission will receive an additional stipend for his efforts. 28 U.S.C. § 992(c). Moreover, federal judges who serve as commissioners need not resign from their appointments as federal judges, but are relieved of their judicial duties during their tenures, id., and exempted from the residency requirement imposed by 28 U.S.C. sections 44(c) and 134(b). 28 U.S.C. § 992(d). The ongoing nature of the Commission is evident: the voting members 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), (b). Third, the Judicial Conference of the United States is required by the Act to perform a number of tasks critical to the operation and existence of the Commission. To begin with, the Conference is charged with the responsibility of recommending to the President for consideration a list of six judges from which three may be appointed. 28 U.S.C. § 991(a). Quite intentionally the judge/commissioners have not been severed from the judicial branch. Earlier versions of the Act contemplated even further judicial involvement in the selection of Commissioners. S.1437, 95th Cong., 1st Sess. (1977), introduced in the 95th Congress, proposed that of the seven Commissioners, four would be appointed by the President with the advice and consent of the Senate, while the other three would be judges, designated by the Judicial Conference. Under that bill, the Commissioners were removeable by their respective appointing or designating authority. S.Rep. No. 605, 95th Cong., 1st Sess. 1159 (1977). That bill also expressed the legislature’s intent that judges be an integral part of the Commission. As in the current Act, judges who serve as Commissioners need not resign their appointment as judges. Congress explained this provision by noting that the judge will remain in the judicial branch and will be engaged in activities closely related to traditional judicial activities, and that such a provision is necessary to assure that highly qualified candidates are not routinely excluded in practice because of the substantial burden of having to resign a lifetime appointment in order to serve a six-year term. Id. at 1162. In S.1722, 96th Cong., 2d Sess. (1980), offered in the 96th Congress, the Commission was to be composed of seven persons, four of whom would be appointed by the President with the advice and consent of the Senate. The three judge/commissioners would be designated by the President from a list of ten candidates submitted by the Judicial Conference. S.Rep. No. 553, 96th Cong., 2d Sess. 1229 (1980). The rationale that the judge-appointees need not be confirmed by the Senate was based on the belief that there was no need to reconfirm a federal judge for service on the Commission because under the Act, the judge would not be required to resign. Id. at 1229 n. 3. Again, this indicates that Congress contemplated that the function of the judge/commissioner would overlap with the judicial functions so that reconfirmation would not be required for this “new” position. H.R. 6012, 98th Cong., 2d Sess. (1984), introduced in the 98th Congress, contained the provision that the Guidelines would actually be prescribed by the Judicial Conference of the United States. The Congressional Report noted a number of reasons that made the Judicial Conference an appropriate body for such a function. First, the procedure for promulgating the Guidelines was analogized to other procedural rules of court such as the Federal Rules of Civil and Criminal Procedure. “Second, because judicial discretion in sentencing is a cornerstone of the criminal justice system, assigning the task of developing guidelines to the Judicial Conference is only logical. Judges who have had a strong' voice in developing the guidelines will be more likely to consistently and fairly apply them.” H.R.Rep. No. 1017, 98th Cong. 2d Sess. 94 (1984) (footnote omitted) [hereinafter H.R. Rep. 1017]. Congress also considered the resources available to the Conference through the Office of the United States Courts. “Equally important, to create an Executive branch agency or commission to promulgate the guidelines might not comport with the Constitution’s separation of powers requirement.” Id. at 94-95 (footnote omitted). Finally, Congress considered that the Judicial Conference would be able to provide continuity and new perspectives to the promulgation of the guidelines while remaining above the political fray. Id. at 95. While, of course, the Judicial Conference under the Act does not promulgate the Guidelines, it does play an important role in choosing the Commissioners and providing information to the Commission. The rationale which sought to place the power to promulgate the Guidelines with the Judicial Conference is nonetheless instructive in demonstrating how the judiciary still is implicated under the present legislation. Formalized and institutional judicial involvement in the crafting of the Guidelines always was considered crucial. Congress intended to model the legislation in such a way as to ensure the participation and cooperation of judges in the creation and administration of the Guidelines. Under the Act, the Judicial Conference is required to submit to the Commission, at least annually, “a written report commenting on the operation of the Commission’s guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission’s work.” 28 U.S.C. § 994(o). The Judicial Conference is the administrative arm of the federal judiciary, and is charged with the responsibility of “mak[ing] a comprehensive survey of the condition of business in the courts of the United States____ It shall also submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business____ [It may] hold hearings, take sworn testimony, issue subpoenas and subpoenas duces tecum, and make necessary and appropriate orders in the exercise of its authority____ All judicial officers and employees of the United States shall promptly carry into effect all orders of the Judicial Conference____” 28 U.S.C. § 331. It may not be maintained that the requirement placed upon the Judicial Conference by the Act is merely a convenient mechanism for choosing independent commissioners for the Commission. The Act requires the Judicial Conference to become intimately involved with the selection process. This requirement further indicates Congress’ intent to place the imprimatur of the judiciary upon the Commission by involving that branch both institutionally through the Judicial Conference and individually by the cooperation of federal judges. Extensive interaction between the judicial branch and the Commission is further evident in the legislative scheme. The Commission has been given the power to monitor the performance of, and issue instructions to probation officers concerning the application of the Guidelines and policy statements. 28 U.S.C. § 995(a)(9), (10). The Probation Office is an arm of the judiciary, properly subject to the authority of the judicial branch. Each district court has the sole authority to appoint and remove probation officers within the district. 18 U.S.C. § 3602(a). Judicial authority over probation, while limited to the district in which each probation office is located, is broad. See United States v. Baker, 429 F.2d 1344, 1347 (7th Cir.1970); Kelly v. United States ex rel Frad, 89 F.2d 866, 869 (2d Cir.), aff'd sub nom. Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282 (1937). The probation officer, in turn, owes his duties to the district court. Each probation officer must perform his duties in accordance with conditions set by the court, and must perform additional duties as specified by the court. 18 U.S.C. § 3603. Additionally, the Director of the Administrative Office of the United States Courts has the authority to oversee probation officers. The Director is empowered to investigate the work performed by probation officers, collect and publish information, report to the Judicial Conference, and fix salaries of probation officers. 18 U.S.C. § 3672. The power over probation is properly thought to be an administrative power of the courts. Johnson v. Mishler, 526 F.2d 364, 366 (2d Cir.1975); United States v. Walker, 491 F.2d 236, 238 n. 3 (9th Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974). Under the Act, the Commission’s supervisory power over the probation officers necessarily implicates the judicial branch of government. Finally, with respect to certain activities, the Commission “shall ... to the extent practicable, utilize existing resources of the Administrative Office of the United States Courts and the Federal Judicial Center for the purpose of avoiding unnecessary duplication.” 28 U.S.C. § 995(b). In sum, we are constrained to conclude that the Sentencing Commission, in both function and form, has been woven into the fabric of the federal judiciary. B. As described by Senator Kennedy, a principal sponsor of the Act, this legislation is “the first comprehensive federal sentencing law and the most far reaching reform contained in the 23 chapters of the massive anti-crime package____” Kennedy, The Sentencing Reform Act of 1984, 32 Fed.B. News & J. 62, 62 (Feb.1985). He also commented that “the Criminal Code Reform Act ... constitutes the most important attempt in 200 years to reorganize and streamline the administration of Federal criminal justice.” 123 Cong.Rec. 13066 (daily ed. May 2, 1977) (statement of Sen. Kennedy). This Act radically transforms the federal penal code, by effectively placing in the judicial branch the power to write the rules of punishment for all crimes. “The extraordinary powers and responsibilities vested in the Commission, ...” S.Rep. 225 at 160, 1984 U.S.Code Cong. & Admin.News p. 3343, confer upon it a power that is essentially legislative. Section 994 of Title 28 of the United States Code details the broad duties of the Commission and creates the parameters by which the Guidelines must be devised. Congress continued the practice of setting maximum terms of imprisonment by statute, but decided “that the indeterminate sentence no longer has a role to play in the context of a guideline sentencing system,” and “[ajccordingly, all sentences to imprisonment under the new system are determinate.” S.Rep. 225 at 115, 1984 U.S.Code Cong. & Admin.News p. 3298. Indisputably, the Act “delegates to the Commission broad authority to review and rationalize the federal sentencing process.” United States Sentencing Commission, Federal Sentencing Guidelines Manual 1.1 (1988) [hereinafter “Guidelines Manual ”]. Specifically, the Commission is empowered to promulgate Guidelines that are to be used to determine “whether to impose a sentence to probation, a fine, or a term of imprisonment,” 28 U.S.C. § 994(a)(1)(A), as well as the length of such term and amount of an appropriate fine. 28 U.S.C. § 994(a)(1)(B). The Commission is also directed to determine whether a prison term should include “a requirement that the defendant be placed on a term of supervised release after imprisonment, and, if so, the appropriate length of such a term,” 28 U.S. C. § 994(a)(1)(C), and “whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively.” 28 U.S.C. § 994(a)(1)(D). The Guidelines must establish a maximum sentencing range for each category of offense and defendant which cannot exceed the minimum range by more than the greater of 25 percent or six months, except if the minimum term is 30 years or more. 28 U.S.C. § 994(b). Further, in establishing the Guidelines and policy statements, the Act provides specific criteria that shall be taken into account concerning the nature of the crime committed and of the defendant. 28 U.S.C. § 994(c), (d). The Commission is empowered to determine how much weight, if any, to give to such generalized factors as the grade of the offense, the nature and degree of the harm caused by the offense, the community’s view of the gravity of the offense, the public concern generated by the offense, the deterrent effect a particular sentence may have on the commission of the offense by others, and the current incidence of the offense in the community and in the Nation as a whole. 28 U.S.C. § 994(c). Also, the Commission is to “assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed and socioeconomic status of offenders.” 28 U.S.C. § 994(d)(ll). Certain other factors are deemed inappropriate to consider in recommending a term of imprisonment. 28 U.S. C. § 994(e). Moreover, the Commission is charged with the responsibility of creating Guidelines that specifically take into account the available resources in penal and correctional facilities, as well as the responsibility of making recommendations concerning the utilization of such facilities. Indeed the Guidelines are to be formulated so as “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. § 994(g); see also 28 U.S.C. § 994(q). The Act also provides for specific consideration of the weight the Commission is to give certain other factors in determining the appropriate Guideline range. 28 U.S.C. § 994(h)-(n). The extraordinary breadth of the Commission’s discretion in ordaining punishment is further evident from the statutory instruction that “as a starting point in its development of the initial sets of guidelines for particular categories of cases, the Commission [shall] ascertain the average sentences imposed in such categories of cases prior to the creation of the Commission,” but the Commission “shall not be bound by such average sentencesrather it shall “independently develop a sentencing range that is consistent with the purposes of sentencing described in section 3553(a)(2) of title 18....” 28 U.S.C. § 994(m) (emphasis added). Four very broadly based and often competing purposes are identified: (1) the sentence should reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the crime; (2) it should adequately deter criminal conduct; (3) it should “protect the public from further crimes of the defendant”; and (4) it should provide the defendant with needed educational and vocational training, medical care and correctional treatment. 18 U.S.C. § 3553(a)(2). In the main, Congress “deliberately [did] not show[ ] a preference for one purpose of sentencing over another in the belief that different purposes may play greater or lesser roles in sentencing for different types of offenses committed by different types of defendants.” S.Rep. 225 at 77, 1984 U.S.Code Cong. & Admin. News p. 3260 (footnote omitted). That difficult task was conferred upon the Commission. The only apparent limitation imposed by Congress in the application of the general theories of penalty was “that imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a); see also 28 U.S.C. § 994(k). Moreover, the Commission has been further empowered generally to promulgate policy statements and rules regarding the appropriate use of plea bargains and agreements, 28 U.S.C. § 994(a)(2)(E), although it has decided that the initial Guidelines would not make significant changes in current plea agreement practices. Guidelines Manual at 1.8. The enabling legislation provides that the Commission’s duties are to be continuous and its work evolutionary. The Act provides that the Commission review and revise the Guidelines based upon independent fact-finding, as well as through interaction with other departments of the Government. 28 U.S.C. § 994(o). The Commission may receive petitions from defendants challenging, based on changed circumstances, the general appropriateness of the Guidelines utilized in determining their sentences. 28 U.S.C. § 994(s)-(u). The Commission also is required to issue to Congress an analysis of sentences imposed under the Guidelines as well as any recommendation for future legislation. 28 U.S.C. § 994(w). Finally, as noted already, the Commission is granted the power to “monitor the performance of probation officers with regard to sentencing recommendations, ...” 28 U.S.C. § 995(a)(9), and to issue instructions to probation officers concerning the application of Guidelines and policy statements. 28 U.S.C. § 995(a)(10). Thus, the power conferred upon the Commission is fundamentally legislative. See, e.g., United States v. Brodie, 686 F.Supp. 941, 947 (D.D.C.1988); United States v. Estrada, 680 F.Supp. 1312, 1321-24 (D.Minn.1988). C. Throughout this country’s history, our courts have agreed that the power to define crime and fix punishment belongs to the legislative branch of government. While from time to time Congress has employed various systems of determining the length of a sentence, see generally United States v. Grayson, 438 U.S. 41, 45-49, 98 S.Ct. 2610, 2613-15, 57 L.Ed.2d 582 (1978), it has remained indisputable, as Chief Justice Marshall wrote many years ago, that “the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820); see also Hutto v. Davis, 454 U.S. 370, 374, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (1982); Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980); Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980); United States v. Evans, 333 U.S. 483, 486-87, 68 S.Ct. 634, 636, 92 L.Ed. 823 (1948); Ex Parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 74, 61 L.Ed. 129 (1916); United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812). Underlying this rule is the recognition that under the Constitution the legislature, as the branch of government most accountable to the people, must be entrusted with making these fundamental public policy decisions. “Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility these are peculiarly questions of legislative policy.” Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958) (citations omitted) (emphasis added). The Supreme Court further explained this view in a death penalty case. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (Stewart, Powell, Stevens, JJ.). The Court reiterated that the specification of punishments involve “questions of legislative policy,” id. at 176, 96 S.Ct. at 2926 (quoting Gore, supra) (other citations omitted), and noted that “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic, and social pressures.” Id. at 175, 96 S.Ct. at 2926 (quoting Dennis v. United States, 341 U.S. 494, 525, 71 S.Ct. 857, 875, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring)). The structural limitations of a judicially-created punishment scheme were outlined in United States v. Evans, supra. There, a defendant was indicted under a statute that made it illegal to bring into or land in the United States, or to conceal or harbor an illegal alien. The statute set a specific punishment based on the number of aliens imported, but failed to fix a punishment for concealing an alien. The indictment charged the defendant with concealing and harboring five aliens. The District Court dismissed the indictment because the statute did not provide for a punishment. The Supreme Court noted that the question presented was whether “the choice the Government asks us to make is so broad and so deep, resting among such equally tenable though inconsistent possibilities, that we have no business to make it at all.” Evans, 333 U.S. at 486, 68 S.Ct. at 636. Affirming the District Court’s decision, the Court held that revising the statute to provide a punishment was “a task outside the bounds of judicial interpretation.” Id. at 495, 68 S.Ct. at 640. The Court further observed that defining crimes and fixing penalties are legislative, not judicial functions. But given some legislative edict, the margin between the necessary and proper judicial function of construing statutes and that of filling gaps so large that doing so becomes essentially legislative, is necessarily one of degree. Id. at 486-87, 68 S.Ct. at 636 (footnote omitted). Congress has given the federal courts discretion in fixing the length of a sentence within the confines of a legislative mandate. However, this had not always been the case. “In the early days of the Republic ... the period of incarceration was generally prescribed with specificity by the legislature.” Grayson, 438 U.S. at 45, 98 S.Ct. at 2613. As theories of penology changed, the scheme of determinate sentencing gave way to a system of indeterminate sentencing whereby a judge could consider the circumstances surrounding a particular case “and, on that basis, ... select a sentence within a range defined by the legislature.” Id. at 46, 98 S.Ct. at 2613 (citation omitted) (emphasis in the original). The discretion afforded the judge in fashioning a just sentence flowed directly from Congress’ authority to create the levels of punishment and delegate responsibility to impose the exact term to the judge consonant with his Article III power to decide a “case” or “controversy.” But the basic authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority____ Ex Parte United States, 242 U.S. at 42, 37 S.Ct. at 74. Further, it must be noted in this regard that the power to permit probation or parole is derived from the legislative power. Affronti v. United States, 350 U.S. 79, 83, 76 S.Ct. 171, 173, 100 L.Ed. 162 (1955); Lathen v. United States, 259 F.2d 393, 397 (5th Cir.1958). The decisions that the Commission has been asked to make in devising these Guidelines are so general and broad that the function must be viewed as essentially legislative. See Evans, 333 U.S. at 486-87, 68 S.Ct. at 636. An examination of the Guidelines as promulgated demonstrates this fact. The Guidelines reflect fundamental political and policy decisions which are derived from qualitative choices as to the type of punishment that is to be associated with specific crimes. These policy choices are made across the full range of federal crimes. For example, for defendants who are convicted of violation of antitrust laws, the Commission has concluded that “prison terms ... should be more common, and usually somewhat longer, than currently is typical____ The guideline imprisonment term represents a substantial change from present practice.” Guidelines Manual, at 2.132-2.133. This represents an independent choice, unmistakably a basic policy determination, that the sentences which are currently being imposed on these defendants do not comport with the Commission’s view of the gravity of the offense, not just that the sentences are generally unfair or disparate. Another example of the broad legislative discretion exercised by the Commission is provided by the Guidelines promulgated for tax evasion. The Commission noted that [rjoughly half of all tax evaders are now sentenced to probation without imprisonment, while the other half receives sentences that require them to serve an average prison term of twelve months. This guideline is intended to reduce disparity ... and to somewhat increase average sentence length. As a result, the number of purely probationary sentences will be reduced. The Commission believes that any additional costs of imprisonment that may be incurred as a result of the increase in the average term of imprisonment ... are inconsequential in relation to the potential increase in revenue. Id. at 2.140 (emphasis added). These “white-collar” examples simply illustrate the policy choices that the Commission is called upon to make. Decisions that result in increased punishment for particular offenses, and necessarily reflect considerations of deterrence and punishment, as well as the social impact of the crime and resource allocation, are integral to the process of developing the Guidelines and accordingly reflect a determination which is inherently legislative. In creating the Guidelines, the Commission necessarily “attempted to reconcile the differing perceptions of the purposes of criminal punishment.” Id. at 1.3. The Commission initially “sought to solve both the practical and philosophical problems of developing a coherent sentencing system by taking an empirical approach that uses data estimating the existing sentencing system as a starting point.” Id. at 1.4. Data drawn from 10,000 pre-sentence investigations were analyzed. But the Commission “has departed from the data at different points for various important reasons,” id., including the demonstrable observation that economic crimes were punished less severely than other equivalent behavior. As the Commission has itself observed, writing these Guidelines has required the resolution of “a host of important policy questions, typically involving rather evenly balanced sets of competing considerations.” Id. at 1.5. Among the most important policy questions for the Commission to decide were these: (1) whether to base sentences upon the actual conduct of the defendant regardless of the charges for which he was convicted (characterized as “real offense” sentencing), or upon the elements of the offense for which the defendant was convicted (characterized as “charge offense” sentencing), or finally whether some “hybrid” system ought to be adopted; id. at 1.5-1.6; (2) whether or not to promulgate significant changes in the current plea bargaining practices, a process which results in the disposition of “nearly ninety percent of all federal criminal cases”; id. at 1.8; (3) whether to write the Guidelines in such a manner as to classify as “serious” and therefore subject to mandatory prison terms, many offenses for which probation generally has been given; id. at 1.9; (4) whether, and under what circumstances, to require that in sentencing defendants of multiple violations of law, that the counts will be made to run concurrently or consecutively; id.; and (5) whether to structure sentencing ranges and tables with many or few levels. Id. at 1.11. The Commission has resolved many, although not all of these policy disputes, and without the unanimity of all of its voting members. Undeniably the product of this Commission is an extraordinary effort to rationalize and synthesize divergent sentencing practice; equally clear to us is the conclusion that these Guidelines reflect a host of profound policy choices, directly affecting the punishment applicable in every federal criminal ease and the size and shape of our penal institutions. We add that this Commission is established as a permanent agency and is charged with the continuing responsibility to modify and revise the Guidelines based on continued research and analysis. 28 U.S.C. § 994(o). The Guidelines that have been promulgated by the Commission are so specific and exact that they will be applied in approximately 90 per cent of all the cases in the federal courts. Guidelines Manual at 1.12. The sentencing judge has the authority to deviate from the Guidelines only if an aggravating or mitigating factor is present in the case and has not been adequately incorporated into the Guidelines. The reasons for the departure must be stated. 18 U.S.C. § 3553(b). The application of these rules is fundamentally different from the discretion heretofore exercised by the judge in imposing a sentence because the Guidelines incorporate the individual circumstances surrounding the case, and create a narrowly prescribed range. The judge’s discretion is thereby sharply constricted. The process of establishing the rules of punishment cannot simply be termed an adjunct function of deciding a case or controversy. See infra § IIIB. The Guidelines reflect prospective rulemaking and the decisions that guide the Commission’s choices are divorced from the process of adjudication. III. The Act violates the doctrine of separation of powers in that it has conferred unprecedented rule-making authority upon the judiciary that sweeps far beyond the case and controversy requirement of Article III; and it has created a Commission combining the power of the judiciary and the executive in such a manner as to plainly conflict with the functions of the courts under Article III. In the process, the Act has had the effect of drawing the least responsive branch of government into an ongoing series of controversial policy debates about crime and punishment. A. Fundamental to any discussion of separation of powers is this basic premise: The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive and Judicial. INS v. Chadha, 462 U.S. 919, 951 [103 S.Ct. 2764, 2784, 77 L.Ed.2d 317] (1983). The declared purpose of separating and dividing the powers of government, of course, was to “diffus[e] power the better to serve liberty.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 [72 S.Ct. 863, 870, 96 L.Ed. 1153] (1952) (Jackson, J., concurring). Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 3186, 92 L.Ed.2d 583 (1986). The diffusion and fragmentation of the power of the state into three distinct and separate branches of government, each with defined powers, stemmed from the conviction that, [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. The Federalist No. 47, at 301 (J. Madison). However, the manner and means by which this separation is to be maintained has generated controversy to this day. Clearly the branches of government were not meant to be hermetically sealed from each other and the necessity of some interdependence has long been recognized. See, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Youngstown Sheet & Tube, supra. The separation of powers became the definitive characteristic of American constitutional government. G. Wood, The Creation of the American Republic, 1776-1787, at 151 (1969). Where Montesquieu and Locke wrote lengthy treatises on the necessity of separating the exercise of governmental power into distinct units, Madison and the Framers sought to translate the theory into constitutional reality. Accordingly, “[t]he several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of the other parts.” The Federalist No. 47, at 301 (J. Madison). The probability that any individual, group or department of government would dominate power was believed by the Framers to be sufficiently great as to require the creation of external checks on all officials and each department. As Madison explained: [A] mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient safeguard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. The Federalist No. 48, at 313. Madison further stated: To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments as laid down in the Constitution? The only answer that can be given is that as all these exterior provisions are found to be inadequate the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each in their proper places____ [T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others ... Ambition must be made to counteract ambition. The Federalist No. 51, at 320-22 (J. Madison). This premise still stands at the center of American constitutional government and the doctrine of separation of powers: it is only by extending the sphere of decision-making, and effectively fragmenting power, that we may hope to mitigate the abuses of power. The aggregation of the legislative and judicial power in the same hands is as unwelcome today as it was when this nation was founded. As framed by Madison, “[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.” The Federalist No. 47, at 303 (J. Madison) (emphasis in original). An underlying basis of the separation of powers doctrine, declared by the Framers and reiterated through the caselaw, is that “[i]t is impossible to keep the judges too distinct from every other avocation than that of expounding the laws.” The Federalist No. 73, at 446-47 (A. Hamilton). Hamilton succinctly detailed the essence of the danger that might be encountered by the aggregation of these powers: From a body which had had even a partial agency in passing bad laws we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them would be too apt to operate in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators would be disposed to repair the breach in the character of judges. The Federalist No. 81, at 483 (A. Hamilton); see also Buckley, 424 U.S. at 123, 96 S.Ct. at 684 (“executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. Ill of the Constitution.”). The separation of powers “doctrine preserves the rule of law by requiring that people who make the law be different from the people who execute and apply it, which makes possible greater impartiality, uniformity and predictability in the application of sanctions.” Note, Separation of Powers and Judicial Service on Presidential Commissions, U.Chi.L.Rev. 993, 1002 (1986). The Framers considered and flatly rejected various proposals to require the judicial branch to participate directly in the legislative process. During the Constitutional Convention, it was proposed that federal judges associate with the executive to form a Council of Revision, which would pass on the validity of laws or exercise a veto. The rejection of this proposal was based on the fear that the proposed Council would grant excessive power to the least responsive branch of government, and that such a consolidation would endanger the integrity of the judiciary. See M. Farrand, The Framing of the Constitution of the United States 79, 119-20, 157 (1913); The Federalist No. 73, at 446-47 (A. Hamilton); cf. Griswold v. Connecticut, 381 U.S. 479, 513 n. 6, 85 S.Ct. 1678, 1698 n. 6, 14 L.Ed.2d 510 (1965) (Black, J., dissenting); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 649-50, 63 S.Ct. 1178, 1190, 87 L.Ed. 1628 (1943) (Frankfurter, J., dissenting); R. Berger, Government by Judiciary 300-06 (1977). In The Federalist No. 73, at 446 (A. Hamilton), Hamilton discussed the two great dangers from such a union with the executive: One is that the judges, who are to be the interpreters of the law, might receive an improper bias from having given a previous opinion in their revisionary capacities; the other is that 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. Hamilton concluded that it was particularly dangerous to place judges “in a situation to be either corrupted or influenced by the executive.” Id. at 447. The history of the Council of Revision is instructive today inasmuch as the Commission also unites the judicial and executive branches. However, unlike the role of the Court in the Council of Revision, the Commission does more than revise or veto laws of Congress; it actually drafts the substantive rules of punishment. Thus, three basic concerns expressed by the Framers are raised by the creation of the Commission. First, the least accountable branch has played a substantial role in drafting the sentencing laws of this country. Second, judicial integrity is threatened by the required participation of judges on this Commission alongside members of the executive branch. Finally, judicial impartiality is compromised by having the judicial branch draft laws it will be called upon to interpret. Article III of the Constitution defines and limits the judicial power: it shall extend to cases and controversies. See, e.g., Muskrat v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 253, 55 L.Ed. 246 (1911); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821). As Hamilton explained, “[tjhis constitutes the entire mas