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July 22, 2004

Wednesday's work by the Legislative Branch

Perhaps tired of standing on the sidelines, Congress also got into the act on Wednesday through the Senate's consideration and passage of a "Concurrent Resolution" urging quick Supreme Court action on Blakely (background here). A quick read of the document makes it seem harmless enough; it concludes by asserting the "sense of Congress that the Supreme Court of the United States should act expeditiously to resolve the current confusion and inconsistency in the Federal criminal justice system by promptly considering and ruling on the constitutionality of the Federal Sentencing Guidelines." Though the idea of one branch ordering another to act quickly seems a bit unsavory to me, I am disinclined to complain about Congress joining lower courts and observers in pleading for the Supreme Court to move fast.

But I can complain -- or at least question -- some of the language tucked into the resolution. Specifically, consider Paragraphs 5 and 6:

... [para 5] Whereas the statutory maximum penalty is the maximum penalty provided by the statute defining the offense of conviction, including any applicable statutory enhancements, and not the upper end of the guideline sentencing range promulgated by the Sentencing Commission and determined to be applicable to a particular defendant;
[para 6] Whereas both Congress and the Sentencing Commission intended the Federal Sentencing Guidelines to be applied as a cohesive and integrated whole, and not in a piecemeal fashion;...

This language jumped out at me because Paragraph 5 seems to adopt concepts and terminology from Judge Easterbrook's dissent in Booker in an effort to distinguish the federal guidelines from the Blakely holding. Whether this resolution and its language will matter one whit to the Supreme Court seems unlikely, but it is interesting that Congress is using Paragraph 5 of the resolution to try to shield the federal guidelines from Blakely's reach. And then, as Marty Lederman at the SCOTUSBlog has already noted here, Paragraph 6 seems to be speaking to (and trying to resolve) the issue of severability.

In short, the language of Paragraphs 5 and 6 is clearly crafted to influence the on-going consideration of the very two issues the High Court will face when it takes a federal Blakely case. And my first reaction is to complain of untoward congressional meddling; but perhaps a healthy perspective would lead me to call all this appropriate inter-branch dialogue.

July 22, 2004 at 03:56 AM | Permalink


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And then, as Marty Lederman at the SCOTUSBlog has already noted here, Paragraph 6 seems to be speaking to (and trying to resolve) the issue of severability.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:56:11 AM

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