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Editor’s note: This week, Oregon Senior U.S. District Judge Owen Panner struck down the federal sentencing guidelines without mentioning Blakely. Instead, Panner wrote in U.S. v. Detwiler that the executive branch has violated the separation of powers doctrine by insinuating itself into the judiciary through the Feeney Amendment. In the excerpts that follow, Panner dissects 1989′s Mistretta v. U.S. ( which upheld the sentencing guidelines), invokes James Madison and compares the judiciary to a pot of boiling frogs. Nominally sponsored by a freshman congressman, the Feeney Amendment actually was authored by Attorney General [John] Ashcroft’s subordinates at the Department of Justice. � No advance notice was given, no hearings were held, and there was no opportunity for meaningful debate or to refute the arguments (and allegedly, misinformation) that were cited as justification for the Amendment. Although the Feeney Amendment directly impacted the Sentencing Commission, that body was not informed of the amendment in advance, let alone consulted. � As news of the Feeney Amendment began to circulate, a firestorm erupted. � Congress did not pause its headlong rush. � This stealth route clearly was intended to prevent close scrutiny of the Feeney Amendment, or a fair opportunity to oppose the measure. No emergency mandated acting in such a precipitous manner, without consulting a coordinate branch of government or allowing opportunity for public input or congressional debate. The legislative record also is replete with remarks by some members of Congress, and the attorney general’s deputies, expressing hostility toward the judicial branch and toward judges who fail to decide cases in the manner favored by those individuals.� Post-Feeney, the president need not nominate any judges to the commission, even though the commission ostensibly is part of the judicial branch. The president may fill every seat with political appointees, deputy attorneys general, or others whom the executive branch favors.The Feeney Amendment also prohibits judges from ever occupying more than three seats on the commission, thus ensuring that judges will never again comprise a majority of the voting membership of the commission. When selecting commission members, the president need not consider the views of the Judicial Conference unless he voluntarily chooses to nominate federal judges. We are thus left with a strange creature that is nominally lodged within the judicial branch, and purports to be performing duties of a judicial nature, yet need contain no judges, does not answer to anyone in the judicial branch, and into which the judicial branch is assured no input, whether substantively or in selecting the members of the commission. � The alterations to the Sentencing Commission effected by the Feeney Amendment require re-examination of a fundamental premise of Mistretta, namely, that the Sentencing Commission is part of the judicial branch. I see no principled basis on which to distinguish the Sentencing Commission, post-Feeney, from the myriad of other administrative agencies that populate the executive branch. Despite this, the Sentencing Commission is performing tasks that never have been within the province of the executive branch. � For separation of powers purposes, if it walks like a duck, and quacks like a duck, then it’s a duck, even if Congress chooses to label it a cow. The plan of the Constitution cannot be circumvented through mere labels. The practical consequence of the Feeney Amendment is that, regardless of what it may say on the office door, the Sentencing Commission is now a captive of the executive branch. Any involvement by the judicial branch in the commission’s work is solely by the grace of the executive branch. The executive branch’s newfound domination of the Sentencing Commission raises grave constitutional concerns. The executive branch initiates and prosecutes criminal cases. It is a party to every federal criminal proceeding. To permit the same body to serve as prosecutor, as advocate for the sovereign, and also to determine the penalty for the offense, is contrary to fundamental notions of liberty and justice. This harkens back to the excesses of the English crown against which the founders of this nation rebelled. It was no accident that measures to protect the independence of the judiciary, and of the jury, were included in the Constitution and Bill of Rights. The Feeney Amendment effectively adopts the very approach that Congress had previously rejected as “inappropriate” and “present[ing] troubling constitutional problems.” This abrupt reversal occurred without a hearing or public debate, without any notice, and without even acknowledging the earlier position. Consequently, this court now must confront the question foreseen in footnote 17 of Mistretta: “whether Congress unconstitutionally ha[s] assigned judicial responsibilities to the Executive or unconstitutionally ha[s] united the power to prosecute and the power to sentence within one Branch.” I conclude that Congress has done both. � The separation of powers doctrine is the principal constitutional means for the judicial branch to resist encroachment, when diplomatic and political efforts fail. The judicial branch cannot enact or veto legislation. It has no control over the budgets of the other branches, or the power to nominate, confirm, or impeach their officials, or the power to conduct investigations and subpoena their officials to testify. Courts are hesitant to declare an act of Congress unconstitutional, and rightly so. So too, by temperament, training, and role, judges are not easily roused to the defense of their own branch. Nonetheless, judges are duty-bound to act when the political balance established by our Constitution is threatened. It is not the power of judges, as individuals, that bears defending, but rather the tripartite system of government that the framers of the Constitution established to safeguard our liberty as a people. � For too long, the judicial branch has remained silent in the face of repeated encroachments by the other two branches. Like frogs in a simmering pot, we adjust to the new temperature, and complain among ourselves that it seems a tad warm, but then accept the new order of things, to repeat that process anew after the next encroachment. Unless a line be drawn somewhere, and soon, the independent federal judiciary that is the bulwark of our liberties will be relegated to just another historical footnote.

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