The Inherent Powers of Federal Courts and the Structural Constitution

Posted: 7 Apr 2003

See all articles by Robert J. Pushaw

Robert J. Pushaw

Pepperdine University - Rick J. Caruso School of Law


The Supreme Court has long defined "inherent powers" as those which "cannot be dispensed with . . . because they are necessary to the exercise of all others." The parameters of inherent judicial authority seem narrow, given its "necessity" definition, its few established categories, and the Court's frequent admonition that it be exercised cautiously. Yet federal judges have repeatedly cited "inherent powers" as a catch-phrase to rationalize a wide range of actions that are not essential to (indeed, that often seem antithetical to) the proper exercise of judicial authority.

Any judicial invocation of inherent power seems to clash with three principles of constitutional structure that the Court has long endorsed. First, the American government is founded upon a written Constitution that enumerates and limits the powers of each department, with particularly stringent restrictions placed on the judiciary. Second, the Court's claim that federal judges may act without statutory authorization appears to conflict with its longstanding position that the Constitution vests Congress with full power over the judiciary's structure, jurisdiction, and operations. Third, the Court's development of rules to govern the exercise of inherent powers cannot be squared with its axiom that Congress makes federal law, both substantive and procedural, which judges merely interpret and apply.

The Court has never explained how the Constitution simultaneously limits federal courts (especially as compared to Congress), yet authorizes them to exercise broad and virtually unreviewable inherent authority. This Article fills that void by setting forth two distinct categories of inherent authority: (1) "implied indispensable" powers--those ancillary actions that traditionally have been viewed as absolutely essential to fulfill the Article III mandate to exercise "judicial power" as independent "courts," and (2) "beneficial" powers--those that are merely helpful, useful, or convenient for federal judges. An "implied indispensable" power must be rooted in historical Anglo-American practice and can be asserted only where federal courts would otherwise be unable to perform their Article III duties competently. A "beneficial" inherent power is one that is useful or convenient to federal judges in performing their Article III duties.

Dividing Article III powers into these categories helps to resolve the conflict between inherent authority and these three constitutional principles described above in three ways. First, the doctrine of enumerated powers restricts federal judges to exercising judicial and implied indispensable powers, as well as any beneficial ones Congress confers. Second, the courts' fashioning of rules in the clearly defined spheres of judicial and implied indispensable powers flows directly from Article III; hence, it does not usurp Congress's Article I "legislative power," which is limited to facilitating the exercise of essential implied authority and governing all aspects of beneficial powers. Third, congressional control over the judiciary does not extend to destroying its constitutional role--for example, by crippling courts in the exercise of ancillary powers that are indispensable to maintaining either their integrity or the adjudicatory process.

Keywords: inherent power, Article III, Constitution, constitutional, judicial power, Congress

JEL Classification: K4, K3

Suggested Citation

Pushaw, Robert J., The Inherent Powers of Federal Courts and the Structural Constitution. Available at SSRN:

Robert J. Pushaw (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

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Malibu, CA 90263
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