There’s just one small problem: Insofar as it authorizes such an appointment, Rule 42(a)(2) is almost certainly unconstitutional under the Supreme Court’s current separation-of-powers jurisprudence. And current doctrine aside, I think that it’s also inconsistent with more fundamental separation-of-powers principles. I sympathize, deeply,…
There’s just one small problem: Insofar as it authorizes such an appointment, Rule 42(a)(2) is almost certainly unconstitutional under the Supreme Court’s current separation-of-powers jurisprudence. And current doctrine aside, I think that it’s also inconsistent with more fundamental separation-of-powers principles. I sympathize, deeply, with the idea that the government’s behavior in J.G.G. demands a remedy. But there are compelling reasons, grounded in other fact patterns, for why we should be wary of giving even the most principled and responsible federal judges the power to override DOJ decisions to not prosecute criminal contempts of court. I realize that this viewpoint will strike at least some readers the wrong way, especially at this moment and/or in this case. But especially as the proper scope of judicial power becomes more important by the day hour, it seems no less important to also articulate the proper limits on that power, too.
There’s just one small problem: Insofar as it authorizes such an appointment, Rule 42(a)(2) is almost certainly unconstitutional under the Supreme Court’s current separation-of-powers jurisprudence. And current doctrine aside, I think that it’s also inconsistent with more fundamental separation-of-powers principles. I sympathize, deeply, with the idea that the government’s behavior in J.G.G. demands a remedy. But there are compelling reasons, grounded in other fact patterns, for why we should be wary of giving even the most principled and responsible federal judges the power to override DOJ decisions to not prosecute criminal contempts of court. I realize that this viewpoint will strike at least some readers the wrong way, especially at this moment and/or in this case. But especially as the proper scope of judicial power becomes more important by the day hour, it seems no less important to also articulate the proper limits on that power, too.
This came from Steve Vladeck. Substack