The Non-Delegation doctrine is aimed at preventing one branch (Congress) from delegating the legislative power to another branch (President). But what about the Judicial branch? We know from Article II, Section II that Congress can “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law.” So the Constitution envisaged some delegation, with Congress’s permission, of the power to appoint inferior officers. What about Congress delegating the legislative power to the courts?

Under the 1934 Rules Enabling Act (now codified at 28 U.S.C 2072), the Supreme Court “shall have the power to prescribe general rules of practice.” The statute stresses that “Such rules shall not abridge, enlarge or modify any substantive right.” After the Court proposes the rules, Congress can “enact[] legislation to reject, modify, or defer the pending rules,” but if it fails to do so, the rules go into effect. For all intents and purposes, the rules of procedure have the binding effect of law, even if they are not so labeled.

Is this delegation constitutional? In 1941, Justice Roberts in Sibbach v. Wilson Co. breezily approved of this delegation.

Congress has undoubted power to regulate the practice and procedure of federal courts,^[6] and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States;^[7]

[6] Wayman v. Southard, 10 Wheat. 1, 21; Bank of the United States v. Halstead, 10 Wheat. 51, 53;Beers v. Haughton, 9 Pet. 329, 359, 361.

[7] Wayman v. Southard, supra, 42; Bank of the United States v. Halstead, supra, 61; Beers v.Haughton, supra, 359.

None of these three cases supports the broad proposition that upholds the Rules Enabling Act.

Wayman is an 1825 C.J. Marshall decision that addressed the Process Act, which delegated to the courts the power to issue rules for service of process and the execution of judgments in federal courts.

But Congress has expressly enabled the Courts to regulate their practice, by other laws. The 17th section of the Judiciary Act of 1789, c. 20. enacts, “That all the said Courts shall have power” “to make and establish all necessary rules for the orderly conducting business in the said Courts, provided such rules are not repugnant to the laws of the United States;” and the 7th section of the act, “in addition to the act, entitled, an act to establish the judicial Courts of the United States,” (act of 1793, ch. 22. s. 7.) details more at large the powers conferred by the 17th section of the Judiciary Act. These sections give the Court full power over all matters of practice; and it is not reasonable to suppose that the Process Act was intended solely for the same object. The language is different; and the two sections last mentioned have no reference to State laws.

Here is Section 17 of the Judiciary Act of 1789:

SEC . 17. And be it further enacted, That all the said courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law; and shall have power to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same; and to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States.

Not to disappoint (he seldom does), Marshall even sketches out when this delegation would become unconstitutional.

It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. 43*43 But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. Without going farther for examples, we will take that, the legality of which the counsel for the defendants admit. The 17th section of the Judiciary Act, and the 7th section of the additional act, empower the Courts respectively to regulate their practice. It certainly will not be contended, that this might not be done by Congress. The Courts, for example, may make rules, directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended, that these things might not be done by the legislature, without the intervention of the Courts; yet it is not alleged that the power may not be conferred on the judicial department.

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details. To determine the character of the power given to the Courts by the Process Act, we must inquire into its extent. It is expressly extended to those forms and modes of proceeding in suits at common law, which were used in the State Courts in September, 1789, and were adopted by that act. What, then, was adopted?

The second case cited, Bank of the United States v. Halstead was decided the same year by Justice Thompson.

It is said, however, that this is the exercise of legislative power, which could not be delegated by Congress to the Courts of justice. But this objection cannot be sustained. There is no doubt that Congress might have legislated more specifically on the subject, and declared what property should be subject to executions from the Courts of the United States. But it does not follow, that because Congress might have done this, they necessarily must do it, and cannot commit the power to the Courts of justice. Congress might regulate the whole practice of the Courts, if it was deemed expedient so to do: but this power is vested in the Courts; and it never has occurred to any one that it was a delegation of legislative power. The power given to the Courts over their process is no more than authorizing them to regulate and direct the conduct of the Marshal, in the execution of the process. It relates, therefore, to the ministerial duty of the officer; and partakes no more of legislative power than that discretionary authority in trusted to every department of the government in a variety of cases. And, as is forcibly observed by the Court, in the case of Wayman v. Southard, the same objection arises to delegating this power to the state authorities, as there does to intrusting it to the Courts of the United States. It is as much a delegation of legislative power in the one case as in the other.

The third case cited, Beers v. Haughton is an 1835 decision by Justice Story, that reaffirm that “state laws have no operation, proprio vigore, upon the process or proceedings in the courts of the United States.”

In the next place, it is equally clear, that such state laws have no operation, proprio vigore, upon the process or proceedings in the courts of the United States; for the reasons so forcibly stated by Mr Justice Johnson, in delivering the final opinion of the court in Ogden v. Saunders, 12 Wheat. Rep. 213; and by Mr Chief Justice Marshall in delivering the opinion of the court in Wayman v. Southard, 10 Wheat. Rep. 1; and by Mr Justice Thompson in delivering the like opinion in the Bank of the United States v. Halstead, 10 Wheat. Rep. 51.

None of these precedents do nearly enough of the heavy lifting to justify how the Rule Enabling Act operates–the Court proposes rules which, unless Congress acts, carry the force of law. As an aside, it is an odd result that the Supreme Court summarily affirms their power to engage in legislative powers with little.

Putting aside Sibbach for a moment–in a question of pure academic interest–consider as a matter of first impression whether the Rules Enabling Act violates the Non-Delegation Doctrine? I have a few tentative thoughts.

First, Congress can, through statute, define the rules of procedure for the inferior tribunals it can ordain and establish. This is easily a “legislative power” granted  to the Congress. Second, if Congress fails to do so, a federal judge, relying on his inherent judicial powers, could set the rules of procedure for his own court, presumably against the backdrop of the common law, as a means to resolve a case or controversy. And different judges can agree to be so bound. So far so good.

But can Congress delegate to the Supreme Court the legislative power to define all of the rules of procedure for all federal courts. Martin Redish has argued that the Rules Enabling Act falls outside the case-or-controversy requirement:

“Thus, in promulgating the Rules for congressional approval, the Court is inherently intertwined in the legislative process. One could reasonably ask, what activity could represent a more striking departure from the traditional judicial function of case adjudication than the direct enactment of legislation?” (p. 317).

Note, this is entirely apart from Erie’s discussion of whether the rules are substantive or procedural–this focuses on whether the Courts should be involved at all as a matter of the separation of powers.

Beyond the case-or-controversy requirement, does the delegation of this legislative itself violate the separation of powers? Through a helpful 1999 article by Leslie Kelleher, I found a 1926 speech given by Sen. Thomas J. Walsh (Montana), a long-time chair of the Senate Judiciary Committee, and opponent of the federal rules. In addition to arguing that uniform rules were bad policy, he argued they were unconstitutional. His position, directly refuting points made by Roscoe Pound about rules promulgated by the King’s Bench, are premised on the non-delegation doctrine.

Here is the highlight:

But because the court of King’s Bench exercised this supervisory control over inferior courts is no reason for assuming that the Supreme Court of the United States, which has only such powers as are delegated to it by the Constitution of the United States, can do the same thing, unless it is a power necessarily implied from those granted . . . . Either the power to regulate the procedure in the inferior courts of the United States in inherent in the Supreme Court, in which case Congress has no control over it since it has legislative authority only, or it is legislative in its nature and therefore reposed in Congress which is powerless to delegate it to anyone.

This point seems quite strong. If we take the distinction between the legislative and judicial power seriously ,as did Chief Justice Marshall two centuries ago, the rules of procedure would most naturally be conceived of as some sort of inherent judicial power. But that is not what is happening. The Courts are actually proscribing rules that have the force of law, that must be approved of by Congress. This intermingling, per Reddish’s comments, seem extremely problematic.

Let’s revisit the current phrasing of the Rules Enabling Act.

The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.

Is there much of an intelligible principle there about what kind of rules are to be prescribed for procedure and evidence? Other than the adjective “general,” I think the answer is no. In Wayman, CJ Marshall stressed:

The power given to the Court to vary the mode of proceeding in this particular, is a power to vary minor regulations, which are within the great outlines marked out by the legislature in directing the execution.

The FRCP, in no way, can be viewed as “minor regulations” within a “great outlines” from the Legislature. It is the opposite. It is a major regulation, with no meaningful outlines from Congress. For example, Rule 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief,” is a substantive rule that will affect whether a claim survives 12(b)(6) or not. Iqbal and Twombly demonstrate this amply.

Consider this example: the Supreme Court promulgated FRCP Rule 8(a), and then asserted the power to define what that term means. In a way, the Rules Enabling Act permits something of a power grab, allowing the Court to aggrandize its own power to set the law and interpret what it means. That Congress willingly gave up this power to the Courts, as they often do to the Executive, is immaterial. As Justice Kennedy stressed in Clinton v. New York.

To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution’s structure requires a stability which transcends the convenience of the moment. The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.

That applies to the courts too…

H/T My student Elliot K. who posed this question that I had never considered.