Constitutionality of a Judicial Review Provision Providing for Automatic Affirmance of Agency Decisions ( 1985 )

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