West coast offense

My Dad taught me the old saying that "the best defense is a good offense." Though many would debate whether this holds true in football for adherents of the West Coast Offense coaching philosophy, the very important (and very entertaining) decision by Oregon US District Judge Panner in US v. Detwiler (available here) suggests that at least one judge is ready to try out the philosophy in the arena of federal sentencing.

In Detwiler, Judge Panner provides a thorough and thoughtful account of how the Feeney Amendment has changed certain premises that were key for the Supreme Court in upholding the structure of the Sentencing Reform Act in Mistretta v. US, 488 U.S. 361 (1989). Following an introductory section with frequent quotes from Mistretta and the Federalist Papers, Judge Panner first documents the history and passage of the Feeney Amendment in stark and provocative terms:

Nominally sponsored by a freshman Congressman, the Feeney Amendment actually was authored by Attorney General Ashcroft's subordinates at the Department of Justice.... This legislation, of vital importance to the Judicial Branch, was "enacted without any consideration of the views of the Judiciary." Chief Justice William Rehnquist, 2003 Year-End Report on the Federal Judiciary. The public likewise had no opportunity to be heard.

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....

Judge Panner thereafter documents the impact and consequences of the Feeney Amendment's changes to the structure of the US Sentencing Commission and the operation of federal sentencing law:

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.... 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.

Consequently, explains Judge Panner, because the "Executive Branch has usurped control over the tasks that Mistretta viewed as historically within the realm of the Judicial Branch," the "only appropriate remedy here is to declare the federal Sentencing Guidelines system, in its present form, unconstitutional."

Detwiler is a powerful and important ruling (not to mention a great read), and it opens up another critical front in the pitched battle between the US Congress and the Federal Judiciary over sentencing law and policy. Moreover, as Howard Bashman astutely notes here, because the Ninth Circuit will surely be called upon to review this decision, "this matter is likely to remain interesting for quite some time to come."