Dual Office Holding and the Constitution: A View From Hayburn’s Case

Abstract

Dual Office Holding and the Constitution A View From Hayburn’s Case Mark Tushnet Editor’s Note: This article will appear in The JudiciaryAct of1789, to bepublishedby Oxford University Press in the spring of1991. The book is a compendium of thepapers delivered at a conference held at Georgetown University to mark the bicentennial of the Judiciary Act. Maeva Marcus, who organized the conference, is the editor. The Supreme Court’s January 1989 decision in Mistretta v. United States rejected a constitutional challenge to the manner inwhich the United States Sentencing Commission was composed.1 The constitutional challenge, prem­ ised on the principle of separation of powers, had several elements. As Justice Blackmun’s opinion for the Court noted, one of these ele­ ments recalled the arrangements brought into question early in the history of the federal judiciary, for the Sentencing Commission, de­ scribedas an independent agency located in the judicial branch, used the talents of sitting fed­ eral judges by making three of them members of the Commission. Because the Commission was not a court but was instead an agency ofthe United States, the federal judges who serve on the Commission hold two positions under the United States, one as judges and the other as Commissioners. This dual office holding was challenged as a violation of the Constitution. Justice Blackmun’s opinionnoted that a similar issue had arisen in connection with Hayburn’s Case, 2 U.S. 409 (1792), in which Congress asked judges of the Circuit Courts to serve as commissionersfor the determinationofcertain questions regarding entitlements to pensions for service during the Revolutionary War. Al­ though the Justices of the Supreme Court, sittingascircuitjudges, held thatthe underlying statute was unconstitutional, most ofthem agreed that Congress could require them to serve as commissioners, not as judges. Thispaper examinesthe constitutional terrain in which the Justices located the prob­ lem in Hayburn’s Case, in an attempt to under­ stand the distinction they drew between their constitutionallylimited duties asjudges and the more expansive possibilities for action in their individual capacities. At the outset, though, it should be noted that what we are dealing with may perhaps best be described as a 500-piece jigsaw puzzle, of which we have before us only a handful ofpieces from which we are to deter­ minewhat the overall picture is like. Under the circumstances, the best I can hope to do is identify certain aspects of the conceptual uni­ verse inwhichthe federaljudiciarywas located, which shed some light on the problem of dual office holding and therefore some light on the conception of judging embedded in the Constitution. I. The Invalid Pensions Act in the Circuit Courts A. The Constitutional Issues Addressed HAYBURN’S CASE 45 The story behind Haybum’s Case is well-known.2 The Invalid Pensions Act of 1792 was a public assistance program3 designed to help the families of soldiers injured in the Revolutionary War adjust to the dislocations caused both by their injuries and by the eco­ nomic disruption that occurred in the war’s af­ termath.4 TheAct suspended a previous statute oflimitations on claims by soldiers’ widows and orphans for two years, and allowed disabled soldiers and seamen to receive a pension. The applicant had to present the circuit court ofhis residence with a certificate or affidavits attest­ ing to his disability. The circuit court, whichwas required to sit for at least five days to receive pension applications, would, after receiving the required documents, certify the degree of dis­ ability to the Secretary ofWar, along with a de­ termination of the appropriate pension. The Secretary could then determine whether there had been “imposition or mistake” and withhold the pension recommended by the circuit court. Finally, the Secretary of War would report the list of applicants he found ineligible to ConIn 1989, Justice Harry Blackmun led the Court in reject­ ing a constitutional challenge to the manner in which the U.S. Sentencing Commissionwas composed. Because the Commisssion was designed as an agency of the United States, federal judges who serve on it were perceived as dual office holders, but not in violation of the Constitution. gress, which then would appropriate money for the pensions of the eligible applicants. Con­ gress apparently...