b'Constitutionality of a Judicial Review Provision Providing\nfor Automatic Affirmance of Agency Decisions\nThe N ortheast Interstate Low-Level R adioactive W aste Management Compact would establish a\nC om m ission whose final administrative decisions would be subject to review in the United\nStates Court o f Appeals for the D istrict o f Colum bia Circuit. A proposed amendment to a bill\ngranting the consent of Congress to the Com pact provides that if review is sought of the\nC om m ission\xe2\x80\x99s decision relative to the designation o f a \xe2\x80\x9chost state\xe2\x80\x9d for a regional radioactive\nw aste disposal facility and the court o f appeals does not rule within ninety days after the\npetition for review has been filed, the Commission\xe2\x80\x99s decision \xe2\x80\x9cshall be deemed to be affirmed.\xe2\x80\x9d\nThis provision raises serious constitutional problems that implicate the doctrine of separation of\npowers. Although Congress has broad authority to prescribe rules concerning judicial prac\xc2\xad\ntice, procedure, jurisdiction, and rem edies and to establish the substantive law that governs\njudicial decisions, the proposed am endm ent exceeds this authority by effectively exercising\nthe core judicial function of deciding particular cases.\n\nDecember 13, 1985\nLetter\n\nfor th e\n\nC h a ir m a n , S e n a t e C\n\no m m it t e e o n t h e\n\nJ u d ic ia r y\n\nThis responds to your request that we review the constitutionality of a\nproposed amendment to the judicial review provisions of S. 1798, a bill \xe2\x80\x9c[t]o\ngrant the consent of the Senate to the Northeast Interstate Low-Level Radioac\xc2\xad\ntive Waste Management Compact.\xe2\x80\x9d The amendment would set a ninety-day time\nlimit for judicial review of certain administrative decisions made by the Commis\xc2\xad\nsion established under the Compact, and would mandate that the decision of the\nCommission be \xe2\x80\x9cdeemed affirmed\xe2\x80\x9d if the court did not rule within that time. As we\ndiscuss below, the proposed amendment raises serious constitutional problems.\nThe purpose of S. 1798 is to grant the consent of Congress, pursuant to the\nCompact Clause, U.S. Const, art. I, \xc2\xa7 10, cl. 3,1and \xc2\xa7 4(a)(2) of the Low-Level\nRadioactive Waste Policy Act, 42 U.S.C. \xc2\xa7 2021d(a)(2), to the Northeast\nInterstate Low-Level Radioactive Waste Management Compact. The Compact,\nwhich was negotiated by Connecticut, New Jersey, Delaware, and Maryland,\nimplements a regional approach to the management and disposal of low-level\nradioactive waste by providing a mechanism for establishment of regional\nwaste disposal facilities and by granting to party states the right to deposit\nwastes at those facilities. The Compact establishes the Northeast Interstate\nLow-Level Radioactive Waste Commission (Commission), composed of mem\xc2\xad\nbers appointed by the party states. Among other responsibilities, the Commis\xc2\xad\nsion may designate \xe2\x80\x9chost states\xe2\x80\x9d that must establish regional disposal facilities\n1 The C om pact C lause provides lhat \xe2\x80\x9c [n ]o State shall, w ithout the consent of C ongress, . . . enter into any\nA greem ent o r C om pact w ith another S ta te .\xe2\x80\x9d\n\n118\n\n\x0cto accept wastes generated by other party states, if the states fail to pursue\nvoluntarily the development of such facilities. Art. IV(i)(9).2\nThe Compact establishes jurisdiction in the federal courts for suits arising\nfrom actions of the Commission. Jurisdiction is provided in the United States\nDistrict Court for the District of Columbia for \xe2\x80\x9call actions brought by or against\nthe Commission.\xe2\x80\x9d Any actions initiated in a state court \xe2\x80\x9cshall be removed\xe2\x80\x9d to\nfederal court. Art. IV(n). In addition, the United States Court of Appeals for the\nDistrict of Columbia Circuit is given jurisdiction \xe2\x80\x9cto review the final adminis\xc2\xad\ntrative decisions of the Commission.\xe2\x80\x9d Art. IV(o).3 Persons aggrieved by a final\nadministrative decision of the Commission may obtain review of the decision\nby filing a petition for review within sixty days after the Commission\xe2\x80\x99s final\ndecision. Art. IV(o)(l). On review, the court of appeals is precluded from\nsubstituting its judgment for that of the Commission \xe2\x80\x9cas to the decisions of\npolicy or weight of the evidence on questions of fact,\xe2\x80\x9d but may remand the case\nfor further proceedings if it finds that the petitioner has been aggrieved because\nthe findings, inferences, conclusions, or decisions of the Commission are: (a)\nin violation of the Constitution of the United States; (b) in excess of the\nauthority granted to the Commission under the Compact; (c) procedurally\ndefective \xe2\x80\x9cto the detriment of any person;\xe2\x80\x9d or (d) arbitrary, capricious, or an\nabuse or clearly unwarranted exercise of discretion. Art. IV(o)(3).\nAs drafted, the Compact provides that the court of appeals \xe2\x80\x9cshall accord . . .\nan expedited review\xe2\x80\x9d to any Commission decision \xe2\x80\x9crelative to the designation\nof a host state.\xe2\x80\x9d Art. IV(o)(2). The proposed amendment you have asked us to\nreview would expand on the requirement for expedited review by providing as\nfollows: \xe2\x80\x9c[I]f the Court does not rule within 90 days after a petition for review\nhas been filed, the Commission\xe2\x80\x99s decision shall be deemed to be affirmed.\xe2\x80\x9d We\nassume that the purpose of this amendment is to ensure that the court of appeals\nwill expeditiously consider and rule on the designation of host states respon\xc2\xad\nsible for construction and operation of regional disposal facilities, so that the\nconstruction of such facilities can proceed as promptly as possible.4 The effect\n2 The C om m ission also w ould exercise several other responsibilities, including approving the export or\nim port o f hazardous wastes not otherw ise perm issible under the Com pact, accepting applications o f other\nstates to becom e m em bers o f the Com pact, adopting a regional managem ent plan for the disposal of low -level\nradioactive w astes, and overseeing im plem entation o f the Com pact. The Com m ission is given authority to\nhold hearings and to require testim ony or o th er inform ation from the party states, to intervene in ju dicial or\nadm inistrative proceedings, and to im pose sanctions on party states for violation of the Com pact, including\nrevocation o f m em bership.\n3 The Com pact does not define \xe2\x80\x9cfinal adm inistrative decisions,\xe2\x80\x9d nor does it state expressly that jurisdiction\nin the court o f appeals to review such decisions is exclusive o f the district court jurisdiction to review \xe2\x80\x9cail\nactions brought by or against the C om m ission.\xe2\x80\x9d It does state, however, that the provision granting jurisdiction\nto the district courts \xe2\x80\x9cshall not alter the jurisd ictio n o f the U nited States C ourt of A ppeals for the D istrict of\nC olum bia C ircuit to review the final adm inistrative decisions o f the Com m ission.\xe2\x80\x9d Art. IV(n).\n4 Because the Com pact negotiated by the states does not include this provision, the proposed am endm ent\nwould in effect be a condition imposed by Congress on its consent to the Compact. Congress may attach\nbinding conditions to its consent to the form ation o f an interstate com pact, provided such conditions are\notherw ise within C ongress\xe2\x80\x99 authority and not in contravention o f any constitutional lim its. See , e g., Petty v.\nTennessee-Mo. Bridge Comm \'n, 359 V S. 275 (1952); Tobin v. United States, 306 F.2d 270 (D.C. Cir. 1962),\ncert, denied , 371 U.S. 902 (1963). A state that objects to such conditions may, o f course, withdraw from an\ninterstate com pact in accordance with its terms.\n\n119\n\n\x0cof this amendment would be to establish an outside limit of ISO days (sixty\ndays for filing the petition for review and ninety days for the court\xe2\x80\x99s ruling)\nfrom the time of the Commission\xe2\x80\x99s determination to the end of review by the\ncourt of appeals. The amendment, however, would not just limit the time\navailable to the court of appeals to rule on a petition for review; it would also\neffectively \xe2\x80\x9caffirm\xe2\x80\x9d any designation decision of the Commission not ruled on\nby the court within that time, regardless of whether the court had in fact\nreviewed the petition and determined that affirmance was warranted under the\nstandards set forth in the Compact.\nTo our knowledge, this provision is virtually unprecedented. We are not\naware of any comparable provision in statutes authorizing judicial review of\nadministrative actions. The closest analogy we have found is the Speedy Trial\nAct, 18 U.S.C. \xc2\xa7\xc2\xa7 3161-3174, which requires that federal criminal defendants\nbe charged and tried within certain time limits.5 If the time limits are not met,\nthe charges against the defendant must be dismissed, either with or without\nprejudice.6 The constitutionality of the Speedy Trial Act was upheld by the\nFourth Circuit in U nited States v. Brainer, 691 F.2d 691 (4th Cir. 1982). As\ndiscussed below, however, we believe that the purpose and effect of the Speedy\nTrial Act differ significantly from the purpose and effect of the proposed\namendment, and therefore that the Brainer decision does not answer satisfacto\xc2\xad\nrily the difficult constitutional questions presented by the amendment.\nOur primary concern is that the proposed amendment would violate the\nconstitutionally mandated separation of powers between the Legislative and\nJudicial Branches. \xe2\x80\x9cBasic to the constitutional structure established by the\nFramers was their recognition that \xe2\x80\x98the accumulation of all powers, legislative,\nexecutive, and judiciary, in the same hands . . . may justly be pronounced the\nvery definition of tyranny.\xe2\x80\x99\xe2\x80\x9d N orthern Pipeline Co. v. Marathon Pipe Line Co.,\n458 U.S. 50, 57 (1982) (plurality opinion) (quoting The Federalist No. 47, at\n300 (J. Madison) (H. Lodge ed. 1888)). Accordingly:\n[t]he Constitution sought to divide the delegated powers of the\nnew Federal Government into three defined categories, Legisla\xc2\xad\ntive, Executive, and Judicial, to assure as nearly as possible, that\n5 T he Speedy T rial A ct requires, inter alia, that any inform ation or indictm ent charging an individual with\nan offense be filed w ithin 30 days from the d ate o f arrest, and th at the trial be com m enced within 70 days of\nthe filing o f the inform ation o r indictment. 18 U.S.C. \xc2\xa7 3161(a), (b), (c). The statute excludes from the\ncom putation o f tim e several types of delay, including: delays resulting from other proceedings concerning the\ndefendant; delays d uring w hich prosecution is deferred by agreem ent w ith the defendant; delays resulting\nfrom the absence o r unavailability of the d efendant o r an essential w itness; delays resulting from the m ental\nincom petence o r physical inability of the d efendant to stand trial; delays resulting from the treatment o f the\ndefen d an t under 28 U .S.C . $ 2902; and d elay s occasioned by the jo inder o f the defendant w ith a codefendant\nas to w hom the tim e fo r trial has not run. 18 U .S.C . \xc2\xa7 3 1 6 1 (h )(l)-(7 ). Also excluded are delays resulting from\na con tin u an ce granted by any ju d g e \xe2\x80\x9cif the ju d g e granted such continuance on the basis o f his findings that the\nends o f ju stic e served by tak in g such actio n outw eigh the best interest o f the public and the defendant in a\nspeedy trial.\xe2\x80\x9d Id. \xc2\xa7 3161(h)(8)(A ).\n6 In determ in in g w hether to dismiss w ith o r w ithout p rejudice, the court m ust consider three factors: the\nseriousness o f the offense; the facts and circum stances o f the case that led to the dism issal; and the im pact o f\na rep ro secu tio n on the adm inistration o f the Speedy Trial A ct and on the adm inistration o f justice. Id.\n\xc2\xa7 3162(a)(2).\n\n120\n\n\x0ceach branch of government would confine itself to. its assigned\nresponsibility. The hydraulic pressure inherent within each of\nthe separate Branches to exceed the outer limits of its power,\neven to accomplish desirable objectives, must be resisted.\nINS v. Chadha, 462 U.S. 919, 951 (1983); see also Buckley v. Valeo, 424 U.S.\n\n1, 122 (1976).\nThe Constitution vests all federal judicial power \xe2\x80\x9cin one supreme Court and\nin such inferior Courts as the Congress may from time to time ordain and\nestablish.\xe2\x80\x9d U.S. Const, art. Ill, \xc2\xa7 1. Thus, \xe2\x80\x9cour Constitution unambiguously\nenunciates a fundamental principle that the \xe2\x80\x98judicial Power of the United\nStates\xe2\x80\x99 must be reposed in an independent Judiciary.\xe2\x80\x9d Northern Pipeline, 458\nU.S. at 60 (plurality opinion). As Alexander Hamilton wrote in The Federalist,\nit is necessary for the Judiciary to remain \xe2\x80\x9ctruly distinct from the Legislature\nand the Executive. For I agree that \xe2\x80\x98there is no liberty, if the power of judging\nbe not separated from the legislative and executive powers.\xe2\x80\x99\xe2\x80\x9d The Federalist\nNo. 78, at 466 (C. Rossiter ed. 1961) (citation omitted). Thus, it is a violation of\nthe separation of powers for the Legislative and Executive Branches to exercise\njudicial power, just as it is unconstitutional for the Judiciary to engage in\nlawmaking or executive functions.\nThe core of the judicial power, which the Legislative and Executive Branches\nmay not invade, is the rendering of decisions in court cases, that is, the\n\xe2\x80\x9capplication of principles of law or equity to [the] facts\xe2\x80\x9d of a particular case.\nVermont v. N ew York, 417 U.S. 270, 277 (1974); see also Williams v. United\nStates, 289 U.S. 553,578 (1933); United States v. Klein, 80 U.S. (13 Wall.) 128\n(1872); M u rray\xe2\x80\x99s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18\nHow.) 272, 284 (1856). Certainly Congress has the constitutional authority to\nenact laws establishing the framework within which judicial decisions must be\nmade. It has broad authority to prescribe rules of practice and procedure,7 to\ndefine and limit jurisdiction,8 and to limit remedies available to litigants.9 In\naddition, Congress prescribes the substantive law that governs judicial deci\xc2\xad\nsions.10 But once that framework has been established, only the courts them\xc2\xad\nselves can render the actual decisions.\nSeparation of powers questions regarding the exercise of the judicial power\nhave frequently arisen in other contexts, such as cases concerning the powers\nof non-Article III courts. See Northern Pipeline, 458 U.S. at 63-76 (plurality\nopinion). The amendment discussed here, however, presents a different \xe2\x80\x94 and\nas we have said, a virtually unique \xe2\x80\x94 separation of powers question. Under the\nproposed amendment, if the court of appeals failed to rule on a petition for\n1 See, e.g., Hanna v. Plumer, 380 U.S. 460, 472 (1965); Palermo v. United States, 360 U.S. 343, 353 n .l 1\n(1959); Sibbach v. Wilson & Co., 312 U.S. 1, 9 (1941); Wayman v. Southard, 23 U.S. (10 W heat.) 1, 43\n(1825).\n8 See, e.g., Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850); Cary v. Curtis, 44 U.S. (3 How.) 236 (1845).\n9See, e.g., Yakus v. United States, 321 U.S. 414 (1944); Lockerty v. Phillips, 319 U.S. 182 (1943); L auf v.\nE.G. Shinner & Co., 303 U.S. 323, 330 (1938).\n10See, e.g., Vandenbark v. Owens III. Glass Co., 311 U.S. 538 (1941); Carpenter v. Wabash Ry., 309 U.S.\n23 (1940); United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 102 (1801).\n\n121\n\n\x0creview within the prescribed time limit, the Commission\xe2\x80\x99s decision would \xe2\x80\x9cbe\ndeemed to be affirmed.\xe2\x80\x9d Such an affirmance would be tantamount to a judg\xc2\xad\nment of the court of appeals and would accordingly have a legal status very\ndifferent from a mere decision of the Commission.11 Such an affirmance would\nplainly represent an exercise of the core judicial function of deciding cases. Yet\nit would derive not from any action taken by the Judiciary, but from an\nautomatic decisionmaking mechanism created by legislative enactment. There\xc2\xad\nfore, in enacting this amendment, Congress would effectively be creating a\nmechanical substitute to do the work of the court of appeals. Because of the\nnovelty of the proposed amendment and the consequent lack of judicial author\xc2\xad\nity addressing the constitutionality of similar measures, any judgment about the\namendment\xe2\x80\x99s constitutionality must proceed from first principles relating to\nthe separation of powers. Nevertheless, we believe that this measure would be\nunconstitutional.\nWe do not believe our conclusion is inconsistent with the Fourth Circuit\xe2\x80\x99s\ndecision in U nited States v. B rainer , holding that the time constraints and\ndismissal sanction of the Speedy Trial Act do not violate the separation of\npowers. The B rainer court assumed that \xe2\x80\x9cthe application of existing law to the\nfacts of a case properly before the courts is a judicial function which the\nlegislature may not constitutionally usurp.\xe2\x80\x9d 691 F.2d at 695. But the court\nanalogized the challenged provisions of the Speedy Trial Act to:\nthe host of other procedural requirements of unquestioned valid\xc2\xad\nity by which Congress regulates the courts of its creation \xe2\x80\x94\nsuch measures as the Federal Rules of Civil Procedure, the\nFederal Rules of Criminal Procedure, the Federal Rules of Ap\xc2\xad\npellate Procedure, the Federal Rules of Evidence, and statutes\nprescribing who may sue and where and for what.\nId. at 696. The court added that \xe2\x80\x9c[s]tatutes of limitation provide perhaps the\nclosest analogy.\xe2\x80\x9d Id.\n11 In general, an affirm ance by the court o f appeals o f a final adm inistrative decision w ould bar relitigation\no f (he sam e claim s u n d er the doctrines o f re s judicata and collateral estoppel. Because o f the preclusive effect\no f an \xe2\x80\x9caffirm an ce,\xe2\x80\x9d it is possible that an individual who had sought judicial review could m ount a due process\nchallenge to th e ju d ic ia l review provisions.\nC ongress m ay, o f course, preclude or lim it judicial review in cases involving statutory rights. See, e.g.,\nMorris v. Cressette, 432 U .S. 491 (1977); Weinberger v. Salfi , 422 U.S. 749, 761-62 (1975); Johnson v.\nRobison, 415 U .S. 361 (1974); see generally Abbott Laboratories v. Gardner , 387 U.S. 136, 140 (1967). An\nabsolute bar against ju d ic ia l review o f constitutional claim s, how ever, would raise difficult constitutional\nquestions th at have not been fully resolved by the Suprem e C ourt. See , e.g., Weinberger v. Salfi, 422 U.S. at\n762 (statin g that an interpretation that absolutely precluded review o f constitutional claim s \xe2\x80\x9cw ould ijave\nraised a serio u s constitutional question o f th e validity o f the statute\xe2\x80\x9d ); Briscoe v Beli, 432 U.S. 404,414\xe2\x80\x9415\n(1977) (upholding absolute preclusion o f ju d icial review o f A ttorney G eneral\xe2\x80\x99s determ ination under the\nV oting R ights A ct as w ithin Congress\' sp ecific pow er to enforce the Fourteenth and Fifteenth Amendments).\nT hus, alth o u g h C ongress could preclude an y ju d icial review o f Com m ission determ inations on statutory\ngrounds and leave to the original jurisd ictio n o f the district courts any constitutional challenges to such\ndeterm inations, the proposed amendment does not pursue this course. Rather, the practical effect o f an\n\xe2\x80\x9caffirm an ce,\xe2\x80\x9d given th e operation of res ju d icata, could well be to c ut o ff an individual\xe2\x80\x99s right to litigate\nconstitu tio n al issues, w hich would, as w e have said, raise d ifficult constitutional questions.\n\n122\n\n\x0cWhatever the merits of these inexact analogies may be in the context of the\nSpeedy Trial Act, they have no force here. For example, we see no meaningful\ncomparison for separation of powers purposes between a statute of limitations,\nwhich bars a party from bringing suit after the passage of a specified period of\ntime, and the proposed amendment, which may result in the rendering by extra\xc2\xad\njudicial means of a decision in a case that is properly before the court of\nappeals. A statute of limitations, unlike the proposed amendment, does not\ncreate an automatic decisionmaking mechanism to take the place of a court. A\nbetter rationale for the result in Brainer is that mandatory dismissal under the\nSpeedy Trial Act is necessary to remedy a violation of the criminal defendant\xe2\x80\x99s\nstatutory right to a speedy trial \xe2\x80\x94 a right that has roots in the Sixth Amendment\nand that plays an important role in safeguarding the accuracy of the trial\nprocess. As the Supreme Court has recognized in cases involving the Sixth\nAmendment speedy trial guarantee, dismissal of the action is really \xe2\x80\x9cthe only\npossible remedy\xe2\x80\x9d for deprivation of a right to a speedy trial. Barker v. Wingo,\n407 U.S. 514, 522 (1972).12 The proposed amendment, by contrast, does not\nappear designed to protect any particular substantive right (let alone any\nconstitutional right), for it mandates the automatic affirmance of the Commis\xc2\xad\nsion no matter what the Commission has decided. Although the proposed\namendment demonstrates Congress\xe2\x80\x99 desire to ensure expeditious review of the\nCommission\xe2\x80\x99s designation decisions, affirmance of such decisions cannot be\nviewed in any sense as a \xe2\x80\x9cremedy\xe2\x80\x9d to redress injury to other parties from delay\nin completion of judicial review. It is not at all clear, for example, that parties\nwho support the Commission\xe2\x80\x99s decision would necessarily be injured by any\nfurther delay in review, or that affirmance of the decision would alleviate any\nsuch injury.\nMoreover, under the Speedy Trial Act, the court has discretion to dismiss the\ncase either with or without prejudice, based on the court\xe2\x80\x99s evaluation of the\nreasons for, and effect of, the delay in the particular case. The choice whether\nto give the dismissal preclusive effect is therefore left to the courts, and the\ncourts are required to conduct the sort of factfinding that is at the core of the\njudicial function. No such latitude is given the court of appeals under the\nproposed amendment; regardless of the circumstances and the merits of the\npetition for review, the Commission\xe2\x80\x99s decision is automatically deemed to be\naffirmed once the ninety-day period has run.\nIn Brainer, the court also considered a separate constitutional challenge to\nthe Speedy Trial Act based on the time limits imposed by the Act \xe2\x80\x94 that those\n12 In Strunk v. United States , 412 U.S. 4 3 4 ,4 3 8 -4 0 (1973), the C ourt explained:\nBy definition, such denial is unlike som e o f the other guarantees o f the Sixth A mendment. For\nexam ple, failure to afford a public trial, an impartial jury, notice o f charges, or com pulsory\nservice can ordinarily be cured by providing those guaranteed rights in a new trial. T he speedy\ntrial guarantee recognizes that a prolonged delay may subject the accused to an em otional stress\nthat can be presum ed to result in the ordinary person from uncertainties in the prospect o f facing\npublic trial o r o f receiving a sentence longer than, o r consecutive to, the one he is presently\nserving \xe2\x80\x94 uncertainties that a prom pt trial re m o v e s.. . . In light o f the policies w hich underlie\nthe right to a speedy trial, dism issal must rem ain, as Barker noted, \xe2\x80\x9cthe only possible rem edy."\n\n123\n\n\x0ctime limits, in and of themselves, \xe2\x80\x9cintrude upon the zone of judicial self\xc2\xad\nadministration to such a degree as to \xe2\x80\x98prevent[ ] the [Judiciary] from accom\xc2\xad\nplishing its constitutionally assigned functions.\xe2\x80\x99\xe2\x80\x9d 691 F.2d at 698 (quoting\nNixon v. A dm inistrator o f Gen. Servs., 433 U.S. 425, 443 (1977)). Although\nexpressing some doubt about the existence and scope of the Judiciary\xe2\x80\x99s inher\xc2\xad\nent power to administer its own docket, the court concluded that the Speedy\nTrial Act did not unduly intrude upon that power. Id. at 698. In reaching that\nconclusion, however, the court cited the considerable flexibility provided by\nthe Act, including the ability of the courts to dismiss an action without preju\xc2\xad\ndice, the exclusion of certain common types of delay from the time limit, and\nthe authority of the courts to grant continuances, upon certain conditions, if\n\xe2\x80\x9cthe ends of justice . . . outweigh the best interests of the public and the\ndefendant in a speedy trial.\xe2\x80\x9d Id.\nThere is no such flexibility built into the proposed amendment. Moreover, it\nmay well be unreasonable in particular cases to require that the entire process\nof appellate decisionmaking be completed within ninety days. Ninety days is\nless than the time generally allowed under the Federal Rules of Appellate\nProcedure just for briefing a case.13 We note that at the present time in the\nDistrict of Columbia Circuit, the average case is not decided until almost seven\nmonths after the last brief is filed in the case.14\nWe do not believe that statutes prescribing a time limit for judicial decisions\nin particular types of cases are necessarily unconstitutional. See, e.g., 28 U.S.C.\n\xc2\xa7 1826(c) (imposing thirty-day limit for disposition of appeals under recalci\xc2\xad\ntrant witness statute).15 As the court noted in Brainer, the separation of powers\ninquiry must focus on the extent to which such time limits actually prevent the\nJudiciary from accomplishing its constitutionally assigned functions and on the\njustification for legislative intervention.16 Without knowing how the time limit\nin question here would affect the ability of the District of Columbia Circuit to\nconduct its business, and without additional information about the need for and\n13 U nder the A ppellate R ules, the record m u st be filed w ithin 4 0 days a fte r service o f the petition for review;\nthe appellant m u st file h is b rie f within 40 d a y s after filing o f th e record; the appellee m ust file his b rief w ithin\n30 days a fter service o f the appellant\'s b rief; and the appellant has 14 days a fter service o f the appellee\'s brief\nto file a reply. See Fed. R. A pp. P. 17, 31.\n,4 T he A dm inistrative O ffice o f the U nited States C ourts has informed us that as o f June 1985, the average\ntim e in the D istrict o f C olum bia Circuit fro m filing o f the last b rief to hearing or subm ission is 4.5 months,\nand the average tim e from hearing or subm ission to final disposition is 2.4 months.\n15 \xe2\x80\x9cT h e circu its are in general agreement th a t the passing o f the 30-day p eriod does not deprive an appellate\nc ou rt o f jurisdiction.** United States v. Johnson , 736 F.2d 358, 362 n.5 (6th Cir. 1984); see alsot e.g.. In re\nGrand Jury Proceedings (A Grand Jury Witness v. United States), 776 F.2d 1099, 1101-02 (2d Cir. 1985);\nMelickian 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\nBerry, 521 F.2d 179,181 (10th Cir.) (dictum that 30-day rule is mandatory), cert, denied, 423 U.S. 928 (1975).\n16 T he Brainer court stated:\nIn determ ining w hether the Speedy T rial Act disrupts the constitutional balance between C on\xc2\xad\ngress an d the courts, \xe2\x80\x9cth e proper in q u iry focuses on the extent to w hich (the Act] prevents the\n[Judiciary] from accomplishing its constitutionally assigned functions.\xe2\x80\x9d A considerable degree\no f congressional intervention in ju d ic ia l adm inistration is constitutionally perm issible if such\nintervention is \xe2\x80\x9cju stifie d by an o v errid in g need to prom ote objectives within the constitutional\nau th o rity o f Congress.**\n691 F.2d a t 6 9 7 -9 8 (quoting Nixon , 433 U .S . at 443).\n\n124\n\n\x0cpurpose of the proposed amendment, we cannot predict how that balance\nwould be struck.\nIn sum, we believe that the proposed amendment raises serious constitu\xc2\xad\ntional problems arising from the doctrine of separation of powers. The most\ncritical of those problems \xe2\x80\x94 that Congress would usurp the Judiciary\xe2\x80\x99s role in\ndetermining the outcome of particular cases \xe2\x80\x94 could be alleviated by deleting\nfrom the amendment the provision that if the court of appeals does not rule on\na petition for review within ninety days of its filing, the Commission\xe2\x80\x99s decision\n\xe2\x80\x9cshall be deemed to be affirmed.\xe2\x80\x9d\nPh il l ip D . B r a d y\n\nActing Assistant Attorney General\nOffice o f Legislative and\nIntergovernmental Affairs*\n\n* NOTE: This letter was drafted by the O ffice o f Legal Counsel for the signature of the A cting A ssistant\nA ttorney G eneral fo r the O ffice o f Legislative and Intergovernm ental A ffairs. Congress subsequently granted\nits consent to the C om pact, see Pub. L. No. 9 9 -2 4 0 , S\xc2\xa7 212, 227, 99 Stat. 1842, 1860, 1909-24 (1986)\n(codified a t 42 U .S.C . \xc2\xa7 202 Id note), and the proposed am endm ent discussed herein becam e part o f the\nCom pact, see art. IV (o)(2), 99 Stat. at 1917.\n\n125\n\n\x0c'