Constitutionality of a Judicial Review Provision Providing

for Automatic Affirmance of Agency Decisions

The Northeast Interstate Low-Level Radioactive W aste Management Compact would establish a 

Commission whose final administrative decisions would be subject to review in the United 

States Court of Appeals for the District of Columbia Circuit. A proposed amendment to a bill 

granting the consent of Congress to the Compact provides that if review is sought of the 

Com m ission’s decision relative to the designation o f a “host state” for a regional radioactive 

waste disposal facility and the court of 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 practice, procedure, jurisdiction, and remedies and to establish the substantive law that governs 

judicial decisions, the proposed amendment exceeds this authority by effectively exercising 

the core judicial function of deciding particular cases.

December 13, 1985

L e t t e r f o r t h e C h a i r m a n , S e n a t e C o m m i t 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 Radioactive Waste Management Compact.” The amendment would set a ninety-day time 

limit for judicial review of certain administrative decisions made by the Commission 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. 3,1 and § 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 members appointed by the party states. Among other responsibilities, the Commission may designate “host states” that must establish regional disposal facilities

1 The Com pact C lause provides lhat “ [n]o State shall, w ithout the consent of Congress, . . . enter into any 

Agreem ent or Compact with another S tate.”

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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 administrative 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 responsible 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 Commission also would exercise several other responsibilities, including approving the export or 

import of hazardous wastes not otherwise permissible under the Compact, accepting applications o f other 

states to become members of the Compact, adopting a regional management plan for the disposal of low-level 

radioactive wastes, and overseeing implementation of the Compact. The Commission is given authority to 

hold hearings and to require testimony or other information from the party states, to intervene in judicial or 

administrative proceedings, and to impose sanctions on party states for violation of the Compact, including 

revocation of membership.

3 The Compact does not define “final administrative decisions,” nor does it state expressly that jurisdiction 

in the court of appeals to review such decisions is exclusive of the district court jurisdiction to review “ail 

actions brought by or against the Commission.” It does state, however, that the provision granting jurisdiction 

to the district courts “shall not alter the jurisdiction of the United States Court of Appeals for the District of 

Columbia Circuit to review the final administrative decisions of the Commission.” Art. IV(n).

4 Because the Compact negotiated by the states does not include this provision, the proposed amendment 

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 formation of an interstate compact, provided such conditions are 

otherwise within Congress’ authority and not in contravention of any constitutional limits. 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, of course, withdraw from an 

interstate compact 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 United 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 satisfactorily 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.’” Northern 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, Legislative, Executive, and Judicial, to assure as nearly as possible, that

5 The Speedy Trial Act requires, inter alia, that any inform ation or indictment charging an individual with 

an offense be filed w ithin 30 days from the date o f arrest, and that the trial be commenced within 70 days of 

the filing o f the inform ation or 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 during which prosecution is deferred by agreem ent with the defendant; delays resulting 

from the absence or unavailability of the defendant or an essential witness; delays resulting from the mental 

incom petence or physical inability of the defendant to stand trial; delays resulting from the treatment of the 

defendant under 28 U.S.C. $ 2902; and delays occasioned by the joinder o f the defendant with a codefendant 

as to w hom the tim e for trial has not run. 18 U.S.C. § 3161(h)(l)-(7). Also excluded are delays resulting from 

a continuance granted by any judge “if the judge granted such continuance on the basis o f his findings that the 

ends o f justice served by taking such action outweigh the best interest of the public and the defendant in a 

speedy trial.” Id. § 3161(h)(8)(A).

6 In determ ining whether to dismiss w ith or without prejudice, the court must consider three factors: the 

seriousness of the offense; the facts and circum stances of the case that led to the dismissal; and the impact o f 

a reprosecution on the administration o f the Speedy Trial A ct and on the administration of 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. New 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 urray’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 decisions.10 But once that framework has been established, only the courts themselves 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).

8See, 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); Lauf 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 judgment 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. Therefore, 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 authority 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 United States v. Brainer, holding that the time constraints and 

dismissal sanction of the Speedy Trial Act do not violate the separation of 

powers. The Brainer 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 validity 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 Appellate 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 administrative decision would bar relitigation 

o f (he sam e claim s under the doctrines o f res judicata and collateral estoppel. Because o f the preclusive effect 

o f an “affirm ance,” it is possible that an individual who had sought judicial review could mount a due process 

challenge to the judicial review provisions.

Congress may, 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 judicial review of constitutional claim s, however, would raise difficult constitutional 

questions that have not been fully resolved by the Supreme Court. See, e.g., Weinberger v. Salfi, 422 U.S. at 

762 (stating that an interpretation that absolutely precluded review o f constitutional claims “would ijave 

raised a serious constitutional question o f the validity o f the statute”); Briscoe v Beli, 432 U.S. 404,414—15 

(1977) (upholding absolute preclusion o f judicial review o f Attorney General’s determination under the 

Voting Rights Act as w ithin Congress' specific power to enforce the Fourteenth and Fifteenth Amendments). 

Thus, although Congress could preclude any judicial review of Commission determinations on statutory 

grounds and leave to the original jurisdiction o f the district courts any constitutional challenges to such 

determ inations, the proposed amendment does not pursue this course. Rather, the practical effect of an 

“affirm ance,” given the operation of res judicata, could well be to cut off an individual’s right to litigate 

constitutional issues, which would, as we have said, raise difficult 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 extrajudicial 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 Commission 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 Court explained:

By definition, such denial is unlike some of the other guarantees of the Sixth Amendment. For 

example, failure to afford a public trial, an impartial jury, notice of charges, or compulsory 

service can ordinarily be cured by providing those guaranteed rights in a new trial. The speedy 

trial guarantee recognizes that a prolonged delay may subject the accused to an emotional stress 

that can be presumed 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, or consecutive to, the one he is presently 

serving — uncertainties that a prompt trial rem oves.. . . In light of the policies which underlie 

the right to a speedy trial, dismissal must remain, as Barker noted, “the only possible remedy."

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time limits, in and of themselves, “intrude upon the zone of judicial selfadministration to such a degree as to ‘prevent[ ] the [Judiciary] from accomplishing its constitutionally assigned functions.’” 691 F.2d at 698 (quoting 

Nixon v. Adm inistrator o f Gen. Servs., 433 U.S. 425, 443 (1977)). Although 

expressing some doubt about the existence and scope of the Judiciary’s inherent 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 prejudice, 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 recalcitrant 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 Under the A ppellate Rules, the record m ust be filed within 40 days after service of the petition for review; 

the appellant m ust file his b rief within 40 d a y s after filing o f the record; the appellee m ust file his brief within 

30 days after service o f the appellant's brief; and the appellant has 14 days after service o f the appellee's brief 

to file a reply. See Fed. R. App. P. 17, 31.

,4The A dm inistrative O ffice o f the U nited States Courts has informed us that as of June 1985, the average 

tim e in the D istrict o f Colum bia Circuit from filing o f the last brief to hearing or submission is 4.5 months, 

and the average tim e from hearing or subm ission to final disposition is 2.4 months.

15 “T he circuits are in general agreement that the passing o f the 30-day period does not deprive an appellate 

court 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 The Brainer court stated:

In determ ining whether the Speedy Trial Act disrupts the constitutional balance between Congress and the courts, “the proper inquiry focuses on the extent to which (the Act] prevents the 

[Judiciary] from accomplishing its constitutionally assigned functions.” A considerable degree 

o f congressional intervention in judicial adm inistration is constitutionally permissible if such 

intervention is “justified by an overriding need to promote objectives within the constitutional 

authority o f Congress.**

691 F.2d at 697-98 (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 constitutional 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.”

P h i l l i p D . B r a d y

Acting Assistant Attorney General

Office o f Legislative and

Intergovernmental Affairs*

* NOTE: This letter was drafted by the Office of Legal Counsel for the signature of the Acting Assistant 

Attorney General for the Office o f Legislative and Intergovernmental Affairs. Congress subsequently granted 

its consent to the Compact, see Pub. L. No. 99-240, S§ 212, 227, 99 Stat. 1842, 1860, 1909-24 (1986) 

(codified at 42 U.S.C. § 202 Id note), and the proposed amendment discussed herein became part o f the 

Compact, see art. IV(o)(2), 99 Stat. at 1917.

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