Judicial Power and the Rules Enabling Act

25 Pages Posted: 28 Jan 2013

Date Written: January 1, 1995


Congress undermines and erodes judicial power when it imperially declares and exercises an exclusive right to enact federal procedural rules. Thus, congressional intrusion into federal procedural rulemaking is the most significant contemporary issue of judicial independence. The proper province of procedural rulemaking is no mere pointillist academic quibble, but rather an issue that runs to the core of judicial power. A judiciary that cannot create its own procedural rules is not an independent judiciary. Moreover, a judiciary that constitutionally and statutorily is entitled to create its own procedural rules, but must perform that function under a constant cloud of congressional meddling and supercession, is truly a subservient, non-independent branch.

While Professor Redish grounds his views of judicial independence in a theory of majoritarian constitutional theory, it is important to ask-with regard to procedural rulemaking ― whether (and in what sense) the federal judiciary is constitutionally or statutorily subordinate to Congress, or, if not, whether the judicial rulemakers are nonetheless required to act as if they were an elected branch of government. There should be no quarrel with the proposition that Congress as the legislative branch ought to be responsive to majoritarian concerns in enacting substantive law, or that the federal courts in performing their judicial function may serve as a counter-majoritarian check on substantive overreaching. But it is a far cry from endorsing these propositions to imposing a majoritarian requirement on the judiciary itself in its procedural rulemaking role. To imply that constitutional government requires this seems a peculiar and dangerous distortion of constitutional theory.

For almost fifty years after the enactment of the Federal Rules of Civil Procedure, the allocation of procedural rulemaking authority was largely a somnambulant issue. No one questioned the federal judiciary's power or authority to promulgate and amend federal procedural rules, and the rare constitutional challenge to specific procedural rules merely asked whether the judiciary had exceeded its powers by enacting a substantive rule in the guise of a procedural one.

In every single case in the Erie-Sibbach-Hanna line, the Supreme Court has never once found that the federal judiciary transgressed its rulemaking authority in promulgating or amending a federal civil rule. If nothing else, this famous case line stands as a jurisprudential monument to the conclusion that the judicial branch, at least, knows its place in the constitutional scheme. The Erie-Sibbach-Hanna case line also stands as testament to the proposition that the federal judiciary understands the difference between substantive and procedural rulemaking, in light of the limits set forth in the Rules Enabling Act. Moreover, throughout the entire Erie-Sibbach-Hanna era, no litigant has ever challenged the fundamental premise that the federal judiciary has procedural rulemaking power, but rather whether the specific exercise of that power contravened the Rules Enabling Act.

Judicial rulemaking was a truly soporific issue until the early 1980s, when Congress unexpectedly began to flex its legislative muscle in the procedural rulemaking arena. With the amendment of the Rules Enabling Act in 1988 and the public opening of judicial advisory committee meetings, the practical business of the judicial rulemaking bodies has changed significantly. What once had resembled a scholarly, deliberative enterprise now has many of the hallmarks of a congressional committee legislative mark-up. But apart from this new-fashioned rulemaking-in-the-political-trenches, these practical changes also have been accompanied by the emergence of a full-blown constitutional debate on rulemaking power.

The debate over rulemaking authority is important in light of what can only be charitably characterized as Congress's arrogant, heavy-handed usurpation of procedural rulemaking authority in the last decade. Congress has directly or indirectly asserted an increasingly active role in the procedural rulemaking process, consequently enfeebling federal courts in their ability to govern their internal affairs. This encroachment has advanced on two fronts.

First, the traditional rulemaking process of the Advisory Committee on Civil Rules basically has been converted into an open forum for public lobbying on rules changes. What once was a deliberative judicial function has been transformed into a mini-legislative process, inducing some judicial committee members to behave uncomfortably more like elected representatives than independent, life-tenured judges. Consequently, judicial advisory committees now work under the intimidation of having their recommendations substantially undone by disappointed suitors who either threaten to (or actually) take their rulemaking petitions to Congress.

Apart from the impact of congressional intervention in the usual procedural rulemaking processes (either before, during, or after judicial rulemaking), Congress more significantly preempted judicial rulemaking in its enactment of the Civil Justice Reform Act of 1990 (“CJRA”), the most sweeping procedural rule reform since promulgation of the federal rules in 1938. As to congressional authority for this legislative venture into procedural rulemaking, the Act represents a highly sophisticated exercise in legislative double-speak, denominating itself as something other than what it actually is, in order to support a dubious constitutional claim to exclusive procedural rulemaking authority.

In support of this legislative venture, Congress asserted both an exclusive right to promulgate federal procedural rules while simultaneously maintaining that the Act was a legitimate exercise of its substantive and delegative lawmaking power. Whatever theory ― and Congress was not especially fussy about which one applied ― Congress was determined to foist its own vision of procedural reform on all ninety-four federal district courts. Hence, the CJRA actually was a congressional-procedural-rulemaking wolf in substantive-lawmaking sheep's clothes. And if the CJRA was not a disguised rulemaking wolf, then it was a rulemaking Trojan-horse. With enactment of the CJRA, Congress rolled this monumental legislation up to the gates of the federal judiciary and the judicial kingdom-suitably impressed-took this monstrosity within its walls (with varying degrees of caution or celebration).

With the CJRA Trojan-horse safely inside the judicial fortress, it may now be too late to salvage either the practical or theoretical consequences of this disturbing incursion on inter-branch power. It seems a bit late to be debating the scope and limits of judicial power and independence when the federal judiciary has largely capitulated, with only muted objection, to Congress's conclusory fiats on rulemaking power. It is sad, indeed, if recent events have largely mooted the issue of rulemaking authority, or rendered this a mere academic issue.

Keywords: Federal rulemaking, Federal Rules of Civil Procedure, Rules Enabling Act, Congressional power, Redish, rulemaking delegation

Suggested Citation

Mullenix, Linda S., Judicial Power and the Rules Enabling Act (January 1, 1995). 46 Mercer L. Rev. 733 (1995), U of Texas Law, Public Law Research Paper No. 285, Available at SSRN: https://ssrn.com/abstract=2208197

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics