A Separation of Powers Defense of Federal Rulemaking Power

Abstract

Fundamental to the structure of our federal government is the theory of the separation of powers. The theory seems simple: the three branches of the federal government exercise three corresponding functions. The legislative branch creates the law, the executive branch enforces the law, and the judicial branch interprets the law. Yet the Federal Constitution contains no clause establishing such a structure. And application of the theory has proven to be complicated.

Judicial rulemaking—the methods by which federal courts create federal procedural rules—represents a paradigmatic clash between the functionalist and formalist theories of the separation of powers. There exist compelling practical reasons to invest such power in the judiciary, yet the Constitution’s text does not explicitly confer such power on any branch. Scholarship on the subject generally approves of the current process based on a classic functionalist separation of powers justification: the systemic benefits of the process outweigh the defects, partly because the judiciary is best equipped to make the rules that guide it.

This Article comprehensively examines the separation of powers issues raised by the current federal rulemaking process under the formalist theory of the separation of powers in light of modern precedent. Part I details the current procedure for creating the federal rules, summarizes the relevant scholarship, and examines the few Supreme Court decisions on the constitutionality of portions of the process. Part II clarifies the process of creating the federal rules of procedure, concluding that, despite the substantive role played by rulemaking committees and Congress’s influence over the process, the Supreme Court creates the rules. Part III describes the statutory and constitutional sources of power that federal courts have referenced in creating the rules and the viable constitutional bases for these sources. It draws conclusions about both the limits on Congress’s regulation of federal court procedure and limits on a federal court’s constitutional power to create procedure. Part IV examines why the Constitution permits Congress’s delegation of such power despite potential conflicts with the non-delegation doctrine, the Case or Controversy Clause, and the Judicial Power Clause. Part V discusses potential constitutional challenges to Congress’s “legislative veto” over rules promulgated by the Supreme Court and to the supersession clause of the Rules Enabling Act.

Keywords: separation of powers, rulemaking, civil procedure