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BROADER IS BETTER: THE INHERENT
POWERS OF FEDERAL COURTS
JOSEPH J. ANCLIEN*
Article III of the United States Constitution vests the Supreme
Court and those lower courts established by Congress with the “ju-
dicial power.” 1 Through this grant, the federal courts are empow-
ered “to decide, in accordance with law, who should prevail in a
case or controversy.” 2 The Constitution does not, however, circum-
- Associate, Schnader Harrison Segal & Lewis LLP. I am grateful to United States District Judge William H. Yohn Jr. and Professor Michael J. Borden, for their insightful comments and suggestions; United States Circuit Judge Robert E. Cowen, for whom I was clerking when I wrote this Article, for his encouragement and support; Christopher Anclien, for being an excellent research assistant and an even better brother; Mary Schroeder, for her patience and love throughout this process; and the staff and editors of the New York University Annual Survey of American Law , for their excellent advice and hard work.
- See U.S. C ONST. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”). Significantly, this power is self-execut- ing. See David E. Engdahl, Intrinsic Limits of Congress’ Power Regarding the Judicial Branch , 1999 BYU L. R EV. 75, 89 (1999) (“[A]t least some elements of judicial potency were conceived from the outset to inhere in federal courts by virtue of their being ‘judicial’ bodies—notwithstanding the absence of authorizing legisla- tion, and no matter what their subject matter competence might be.”); John Harri- son, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III , 64 U. CHI. L. R EV. 203, 211 (1997) (stating that “the Vesting Clause [of Article III] is a self-executing enactment”); Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View , 46 CATH. U. L. R EV. 671, 699 (1997) (“The appropriate interpretation is not that Congress must vest the judicial power in the federal judiciary, but that the Constitution itself does the vesting.”).
- Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J., concurring); see also THE F EDERALIST N O. 39, at 233 (James Madison) (Garry Wills ed., 2003) (explaining that decisions of federal courts are “to be im- partially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality”). While the Con- stitution does not elaborate on the definition of this short phrase, see EDWARD S. CORWIN , T HE D OCTRINE OF J UDICIAL R EVIEW 16 (Peter Smith 1963) (1914) (“[A]s to what that [judicial] power is, what are its intrinsic nature and scope, [the Constitu- tion] says not a word.”), commentators have taken stabs at fixing its meaning. For instance, Professors Landis and Frankfurter have concluded that the “‘Judicial power’ sums up the whole history of the administration of justice in English and American courts through the centuries.” Felix Frankfurter & James M. Landis, Power of Congress over Procedure in Criminal Contempts in “Inferior” Federal Courts—A Study in Separation of Powers , 37 HARV. L. R EV. 1010, 1017 (1924). More recently, Professors Liebman and Ryan have exhaustively combed the records of the Consti-
38 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 64:
scribe the means that the courts may invoke on their own initiative
to facilitate their exercise of the judicial power. Nevertheless, the
courts regularly apply their “inherent powers” to take some action
that has not been specifically authorized by the Constitution, writ-
ten rule, or statute. 3
The federal courts’ use of inherent powers represents a sharp
break from the usual pattern of congressional dominance, espe-
cially over the lower courts. The lower courts exist only because
Congress exercised its prerogative to ordain and establish them. 4
Consequently, Congress controls the lower courts’ size, location,
and organization; 5 determines what cases the courts may hear
tutional Convention and analyzed two centuries of federal court decisions to arrive at the following definition: “‘[T]he judicial Power’ means the Article III judge’s authority and obligation, in all matters over which jurisdiction is conferred, inde- pendently, finally, and effectually to decide the whole case and nothing but the case on the basis, and so as to maintain the supremacy, of the whole federal law.” James S. Liebman & William F. Ryan, “Some Effectual Power”: The Quantity and Qual- ity of Decisionmaking Required of Article III Courts , 98 COLUM. L. R EV. 696, 771 (1998) (emphasis omitted). But see Evan Caminker, Allocating the Judicial Power in a “Uni- fied Judiciary , ” 78 TEX. L. R EV. 1513 (2000) (critiquing Liebman and Ryan’s formu- lation). For the purposes of this Article, the definition in the text is sufficient.
- For a seminal discussion of inherent powers, see Frankfurter & Landis, supra note 2, at 1023 (suggesting that powers may be inherent if: (1) “they ‘inhere’ in nature, so that to deny these powers and yet to conceive of courts is a self- contradiction”; (2) “they ‘inhere’ in our history, so that the formulated experience of the past embodies them”; or (3) “they ‘inhere’ in the idea of a court’s useful- ness, so that the courts would otherwise obviously fail in the work with which they are entrusted”).
- Conceivably, then, Congress could also abolish the lower federal courts. See, e. g., Steven G. Calabresi, The Congressional Roots of Judicial Activism , 20 J.L. & POL. 577, 581 (2004) (“While the Constitution requires Congress to create and fund the Supreme Court, it technically leaves Congress free to create or abolish lower federal courts and their jurisdiction and funding as it sees fit.”). For in- stance, in the Act of February 13, 1801, the Federalists created permanent judge- ships on the circuit courts and appointed Federalist judges to fill those slots. See RICHARD H. F ALLON , J R. ET AL ., H ART AND W ECHSLER ’S T HE FEDERAL COURTS AND THE FEDERAL SYSTEM 34 (5th ed. 2003). However, the incoming Jeffersonians then repealed the law and abolished the judgeships in the Judiciary Act of 1802. See id. But see Theodore Eisenberg, Congressional Authority to Restrict Lower Court Jurisdiction , 83 Y ALE L.J. 498, 509–13 (1974) (arguing that, while at the time the Constitution was drafted lower federal courts may not have been necessary, as caseloads have grown those courts have become essential to the success of the constitutional scheme).
- See 28 U.S.C. § 41 (2000) (creating thirteen circuit courts and defining their geographic boundaries); § 44 (setting the number of judges per circuit and their salaries); § 45 (setting qualifications for chief judges); § 48 (listing cities in which each circuit court must hold regular sittings); §§ 81–131 (setting territories
40 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 64:
It is important to note, at the outset, that this Article treats
inherent powers as a subset of implied powers. 10 Thus, whatever
obviously is no separation of powers issue if the courts oblige. And if Congress has expressly foreclosed a procedural tack, courts are generally not empowered to dis- regard Congress’s pronouncement. See Carlisle v. United States, 517 U.S. 416, 426 (1996) (“Whatever the scope of this ‘inherent power,’ however, it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure.”); Palermo v. United States, 360 U.S. 343, 353 n.11 (1959) (stating that the power of the Supreme Court “to prescribe rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Con- gress”); John Papachristos, Comment, Inherent Power Found, Rule 11 Lost: Taking a Shortcut to Impose Sanctions in Chambers v. NASCO, 59 BROOK. L. R EV. 1225, 1265 (1993) (“[W]here codified sanction provisions provide an adequate means by which to regulate conduct, authority to act under the guise of inherent power is not only unnecessary, but improper.”). Thus, the dynamic situations occur when Congress has not spoken on an issue. This concept is described in Justice Jack- son’s classic opinion in Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 (1952), which, while concerning a clash between the executive and legislative branches, provides a useful comparison of a branch’s constitutional authority alone and in conjunction with another branch. Justice Jackson explained that “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority.” Id. at 637 (Jackson, J., concurring). On the other hand, “[w]hen the President takes measures incompat- ible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitu- tional powers of Congress over the matter.” Id.
- While some argue that implied and inherent powers are entirely separate, see Scott C. Idleman, The Emergence of Jurisdictional Resequencing in the Federal Courts , 87 CORNELL L. R EV. 1, 45–48 (2001), neither the caselaw nor the underlying con- cepts admit such a sharp distinction. Hudson , regularly referred to as the first case to recognize an inherent power, never actually uses the word “inherent.” See United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812). Instead, it refers to “implied powers,” in whose order it includes contempt, the quintessential inherent power. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) (calling con- tempt the “most prominent” inherent power). Other cases similarly use the words interchangeably. See, e.g. , Eash v. Riggins Trucking Inc., 757 F.2d 557, 562–63 (3d Cir. 1985) (en banc) (referring to middle level inherent powers (in which it in- cludes contempt) as those “powers implied from strict functional necessity”); cf. David E. Engdahl, The Contract Thesis of the Federal Spending Power , 52 S.D. L. R EV. 496, 499 n.19 (using these terms interchangeably). Moreover, as Justice Jackson wrote in his Youngstown concurrence, it is the concept that is significant, not the term used to describe it. See Youngstown Sheet & Tube Co. , 343 U.S. at 647 (Jackson, J., concurring) (“‘Inherent’ powers, ‘implied’ powers, ‘incidental’ powers, ‘ple- nary’ powers, ‘war’ powers and ‘emergency’ powers are used, often interchangea- bly and without fixed or ascertainable meanings.”). And it is clear that the concepts described by “implied powers” and “inherent powers” coalesce. For in- stance, in describing implied powers in McCulloch v. Maryland , 17 U.S. (4 Wheat.) 316 (1819), Chief Justice Marshall stated that “the powers given to the government imply the ordinary means of execution,” id. at 409, which demonstrates that im-
2008] BROAD INHERENT POWERS OF FEDERAL COURTS 41
individuals or courts have stated about implied powers is equally
applicable to this Article’s discussion of inherent powers.
These inherent powers are unquestionably critical to the fed-
eral judicial system. Courts rely heavily on them to manage litiga-
tion 11 and to sanction refractory parties. 12 Despite the significance
of these powers, and despite the fact that the Supreme Court has
recognized their existence since at least 1812, 13 they have been de-
scribed as “nebulous” and possessing “shadowy” bounds. 14
Courts wield their inherent powers uneasily due to doctrinal
uncertainty on two fronts. First, there is no clear standard establish-
ing when courts may legitimately invoke their inherent powers to
take some action that has not been specifically licensed by rule or
statute. The Supreme Court’s jurisprudence is schizophrenic: it
sometimes states that inherent powers are available only when they
are indispensable to the discharge of the judicial power, yet it often
authorizes their use in less pressing situations. 15 Meanwhile, the
two most prominent commentators to consider courts’ inherent
powers have advocated the Supreme Court’s hard-line view, arguing
that inherent powers should be constrained to cases of indispensa-
ble necessity.^16 Accordingly, these commentators argue that all
other uses of inherent power—embodied in hundreds of cases 17 —
are illegitimate.
plied powers may be a means to achieve constitutionally vested ends. This is also how the Supreme Court discusses inherent powers. In Chambers v. NASCO, Inc. , 501 U.S. 32 (1990), for example, the Court described inherent powers as those “necessary to the exercise of all others” and that are “necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 43; see also Ex parte Robinson, 86 U.S. 505, 510 (1873) (the exis- tence of the contempt power “is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice”); Frankfurter & Lan- dis, supra note 2, at 1023 (suggesting that powers may be inherent if “they ‘inhere’ in the idea of a court’s usefulness, so that the courts would otherwise obviously fail in the work with which they are entrusted”). Thus, both ideas concern powers that facilitate a court’s exercise of its Constitutionally granted duties.
- See infra Part I.A.
- See infra Part I.A.
- See Hudson , 11 U.S. (7 Cranch) at 34.
- Eash , 757 F.2d at 561.
- See infra Part I.B.
- See generally Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution , 86 IOWA L. R EV. 735 (2001); William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause , 40 LAW & C ONTEMP. P ROBS. 102 (1976).
- See infra Part I.A.
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waste—the vast majority of federal court precedents, while provid-
ing a heretofore lacking justification for those decisions.
This Article then applies these twin conclusions to the fraud-
upon-the-court doctrine, a well-established body of law founded on
inherent powers that permits courts to set aside judgments that
were procured by fraud. This application is illuminating in two re-
spects. First, it illustrates the value of recognizing a broad form of
inherent power. The fraud-upon-the-court doctrine, although not
indispensable to the operation of courts, serves the salutary pur-
poses of protecting courts from becoming saddled with ill-gotten
judgments, acting as a stick to punish parties who defraud the
courts, and furthering general notions of fair play. The natural re-
lation standard advocated by this Article embraces the fraud-upon-
the-court doctrine; the indispensably necessary standard advanced
by the other commentators rejects the doctrine as illegitimate. Sec-
ond, this exercise permits a close inspection of the interplay be-
tween inherent powers and statutes—here, the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) 22 —and helps mitigate
concerns that a loose interpretation of inherent powers will tram-
mel upon Congress’s authority to set policy. Vitally, because cases
pitting the fraud-upon-the-court doctrine against the AEDPA are
percolating through the federal courts, 23 the courts are presently
faced with the precise issues that this Article tackles and hopes to
clarify.
This Article proceeds in three parts. In Part I, I introduce the
general use of inherent powers and elaborate on the existing de-
bates about when they are available and when they may be abro-
gated by Congress. In Part II, I argue that history, caselaw, and
policy considerations support the availability of inherent powers in
- Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 28, and 42 U.S.C.).
- See, e.g. , United States v. Barbosa, 239 F. App’x 759, 760 (3d Cir. 2007) (“We have not previously addressed in a precedential decision whether a Hazel- Atlas motion is a legitimate means of attacking a criminal conviction which has already been assailed on direct appeal and via § 2255. We need not resolve that question here... .”); Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006) (discussing under which circumstances fraud upon the court constitutes a succes- sive habeas motion and when it constitutes a “true” motion under Fed. R. Civ. P. 60(b)); Workman v. Bell, 227 F.3d 331, 335 (6th Cir. 2000) (en banc) (“[C]ases of fraud upon the court are excepted from the requirements of section 2244.”); Fierro v. Johnson, 197 F.3d 147, 152–53 (5th Cir. 1999) (noting that “[i]t is ex- ceedingly difficult to answer th[e question of whether the AEDPA preempts or modifies courts’ use of their inherent powers] because the search for an answer pits the clear statutory language (of § 2244(b)(1)) against long-established ‘inher- ent’ powers of the judiciary,” and ultimately declining to resolve the issue).
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all cases in which they possess a natural relation to the exercise of
the judicial power. I further argue that Congress may limit the use
of an inherent power only if doing so will not hamper the central
functioning of courts. Finally, in Part III, I apply my methodology
to the fraud-upon-the-court doctrine.
I. INTRODUCTION TO INHERENT POWERS: THEIR USES, THEIR LIMITS, AND THE ROLE OF CONGRESS
As stated above, inherent powers may be defined as the power
of a federal court “to control and direct the conduct of... litiga-
tion without any express authorization in a constitution, statute, or
written rule of court.” 24 To elucidate this concept, it is useful to
canvass the state of the law on three specific inherent powers issues:
(1) the specific situations in which federal courts may use their in-
herent powers; (2) the level of necessity required to justify the invo-
cation of inherent powers; and (3) how broadly Congress may
abrogate rules founded on inherent powers. This background anal-
ysis reveals the disarray that currently plagues the doctrine, but also
paves the way for a comprehensive solution.
A. The Vibrancy of the Inherent Powers Jurisprudence
The inherent powers jurisprudence is rich and varied. While
courts typically use their inherent powers to manage litigation and
to sanction parties, these categories are so amorphous that they un-
derscore a cardinal truth: courts have relied on their inherent pow-
ers at every stage of trial. Above all, inherent powers cases reflect
justice’s “suppleness of adaptation to varying conditions.” 25
Inherent powers have proven invaluable to courts’ pretrial case
management. The Supreme Court has held that before a case com-
mences, lower courts have the power to stay an action pending the
completion of a related action in another court, explaining that
“the power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for liti-
gants.” 26 Courts have also invoked their inherent powers to accom-
- Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation , 73 T EX. L. R EV. 1805 , 1805 (1995).
- Landis v. N. Am. Co., 299 U.S. 248, 256 (1936).
- Id. at 254. While Landis involved staying a federal civil case when another civil case was proceeding in a different federal court, the courts of appeals have concluded that this principle applies with equal vitality when the related action proceeds in a state suit, see Kittel v. First Union Mortgage Corp., 303 F.3d 1193,
46 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 64:
Courts have also turned to their inherent powers to manage
and expedite trials by interrupting counsel and setting time limits, 37
limiting the number of expert witnesses who may testify, 38 condi-
tionally admitting some exhibits and then striking them after the
close of evidence,^39 excluding exhibits or refusing to permit the tes-
timony of witnesses not listed prior to trial, 40 declaring parties who
were absent from docket call ready for trial, 41 making in limine rul-
ings,^42 altering common law rules of procedure, 43 excluding evi-
dence that would be unfair to admit, 44 permitting the taking and
filing of post-trial depositions, 45 refusing to subpoena witnesses for
indigent civil litigants who cannot tender fees, 46 issuing and re-
sponding to letters rogatory, 47 implementing discovery procedures
accept settlement negotiated by counsel). But see In re NLO, Inc., 5 F.3d 154, 158 (6th Cir. 1993) (holding that courts lack authority to compel parties to participate in summary jury trial open to public and media); David A. Rammelt, Note, “Inher- ent Power” and Rule 16: How Far Can a Federal Court Push the Litigant Toward Settle- ment? , 65 IND. L.J. 965, 1001 (1990) (“[T]he use of mandatory ad hoc procedures, independently imposed by the judiciary [often by invoking inherent powers] for the sake of judicial economy, is a dangerous solution.”).
- See United States v. Maloof, 205 F.3d 819, 828 (5th Cir. 2000); United States v. Gray, 105 F.3d 956, 964–65 (5th Cir. 1997); Sims v. ANR Freight Sys., Inc., 77 F.3d 846, 849 (5th Cir. 1996).
- See Aetna Cas. & Sur. Co. v. Guynes, 713 F.2d 1187, 1193 (5th Cir. 1983). But see United States v. Colomb, 419 F.3d 292, 301–02 (5th Cir. 2005) (holding that it was improper for a district court to exclude government witnesses who would testify to probative and relevant evidence).
- See Walker v. Action Indus., Inc., 802 F.2d 703, 712 (4th Cir. 1986).
- See Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 897– (8th Cir. 1978).
- See Williams v. New Orleans Pub. Serv., Inc., 728 F.2d 730, 732 n.4 (5th Cir. 1984).
- See Luce v. United States, 469 U.S. 38, 41 n.4 (1984).
- See Funk v. United States, 290 U.S. 371, 382 (1933) (“That this court and the other federal courts, in this situation and by right of their own powers, may decline to enforce the ancient rule of the common law under conditions as they now exist we think is not fairly open to doubt.”).
- See Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (approving exclusion of insurer’s expert testimony evidence showing that moored boat was destroyed by fire caused by electric space heater where other side was precluded from gaining expert testimony since heater and boat had been destroyed).
- See United States ex rel. Consol. Elec. Distribs., Inc. v. Altech, Inc., 929 F.2d 1089, 1091–92 (5th Cir. 1991).
- See Lloyd v. McKendree, 749 F.2d 705, 707 (11th Cir. 1985); Estep v. United States, 251 F.2d 579, 582 (5th Cir. 1958).
- See In re Letter Rogatory, 523 F.2d 562, 564 (6th Cir. 1975) (“[I]t has been held that federal courts have inherent power to issue and respond to letters roga- tary... .”); United States v. Reagan, 453 F.2d 165, 173 (6th Cir. 1971); United
2008] BROAD INHERENT POWERS OF FEDERAL COURTS 47
in habeas cases, 48 and requiring the prosecution to produce the
previously recorded statements of its witnesses. 49
Courts have also relied on their inherent powers to enhance
the efficacy of the fact-finding process. Most famously, in Ex Parte
Peterson , the Supreme Court approved of a district court’s decision
to appoint an auditor “to make a preliminary investigation as to the
facts; hear the witnesses; examine the accounts of the parties, and
make and file a report in the Office of the Clerk of this Court with a
view to simplifying the issues for the jury.” 50 The Court held
broadly that “[c]ourts have... inherent power to provide them-
selves with appropriate instruments required for the performance
of their duties,” including the “authority to appoint persons uncon-
nected with the court to aid judges in the performance of specific
judicial duties, as they may arise in the progress of a cause.” 51
Courts have also relied on inherent powers to appoint amici curiae
on their own motion, 52 require the attendance of parties at a hear-
ing to discuss the disappearance of evidence, 53 and compel the gov-
ernment to submit a memorandum of law. 54
Finally, one of the most common and important roles of inher-
ent powers is to allow courts to craft flexible sticks to sanction con-
tumacious parties. For instance, in Link v. Wabash Railroad Co. , the
Supreme Court affirmed a district court’s dismissal of an action for
States v. Staples, 256 F.2d 290, 292 (9th Cir. 1958). The Sixth Circuit has defined letters rogatory as: [T]he medium, in effect, whereby one country, speaking through one of its courts, requests another country, acting through its own courts and by meth- ods of court procedure peculiar thereto and entirely within the latter’s con- trol, to assist the administration of justice in the former country; such request being made, and being usually granted, by reason of the comity existing be- tween nations in ordinary peaceful times. In re Letter Rogatory, 523 F.2d at 563 n.1.
- See Harris v. Nelson, 394 U.S. 286, 290 (1969).
- See Jencks v. United States, 353 U.S. 657, 668–69 (1957).
- 253 U.S. 300, 304 (1920).
- Id. at 312. The Court elaborated: To take and report testimony; to audit and state accounts; to make computa- tions; to determine, where the facts are complicated and the evidence volumi- nous, what questions are actually in issue; to hear conflicting evidence and make finding thereon... are among the purposes for which such aids to the judges have been appointed. Id. at 313.
- See In re Utils. Power & Light Corp., 90 F.2d 798, 800 (7th Cir. 1937).
- See Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 11– (1st Cir. 1985).
- See Alameda v. Sec’y of Health, Educ. & Welfare, 622 F.2d 1044, 1047 (1st Cir. 1980).
2008] BROAD INHERENT POWERS OF FEDERAL COURTS 49
Manifestly, inherent powers are not some esoteric, antiquated
doctrine valuable only to mavens of federal procedure. Rather, in-
herent powers are a flexible tool that enables courts to respond to
the changing realities of litigation without requiring a prolix code
of procedure.
B. The Legitimacy of Courts’ Invocation of Inherent Powers
Despite the frequency with which lower courts rely on inherent
powers, and the Supreme Court’s amenability to such reliance, the
Court has never articulated an overarching standard establishing
when these powers may be used. The commentators, meanwhile,
have argued that separation-of-powers principles mandate that
courts may use their inherent powers only when doing so is indis-
pensably necessary to their achieving their fundamental purpose.
The Supreme Court first recognized implied powers in the ju-
diciary in United States v. Hudson. 65 There, in the course of rejecting
the existence of jurisdiction over common law crimes, the Court
stated:
Certain implied powers must necessarily result to our Courts of justice from the nature of their institution.... To fine for con- tempt—imprison for contumacy—inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.... 66 Since Hudson , the Supreme Court has occasionally harkened to
this confined version of implied power, 67 while frequently authoriz-
ing the use of implied powers without discussing indispensability.
For instance, in Landis v. North American Co. , the Supreme Court
recognized the inherent power of courts to stay proceedings as a
way to manage a “docket with economy of time and effort for itself,
for counsel, and for litigants.” 68 Absent in this discussion was any
assertion that courts would be crippled without this power; rather,
as the Supreme Court recognized, the authority is useful and effi-
cient.^69 Similarly, in Gulf Oil Corp. v. Gilbert , the Supreme Court
- 11 U.S. (7 Cranch) 32, 34 (1812).
- Id.
- See Chambers , 501 U.S. at 43 (stating “[i]t has long been understood that ‘[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution,’ powers ‘which cannot be dispensed with in a Court, because they are necessary to the exercise of all others’” (quoting Hudson , 11 U.S. (7 Cranch) at 34)); Roadway Express, Inc. , 447 U.S. at 764.
- 299 U.S. 248, 254 (1936).
- Id. at 255.
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bottomed its acceptance of the inherent power of invoking forum
non conveniens on general policy concerns such as preventing
plaintiffs from attempting to “‘vex,’ ‘harass,’ or ‘oppress’ the defen-
dant by inflicting upon him expense or trouble not necessary to his
own right to pursue his remedy,” 70 and in fairly apportioning the
burdens of litigation among courts and localities. 71 Again, there is
nary a mention of indispensability.
Not only did the Supreme Court neglect to include any discus-
sion of the indispensability standard in these cases, but also its hold-
ings are flatly incompatible with that standard. Forum non
conveniens—by its very terms—is grounded on interests of conve-
nience. No one would argue that this power is indispensable to
courts. Similarly, courts stay actions for reasons of convenience and
efficiency. Courts would not be rendered incapable of performing
their Article III duties if they could not stay cases. As analysis of the
sundry inherent powers discussed in Part I.A reveals, indispensabil-
ity is the exception, not the rule. 72
Notwithstanding the Supreme Court’s general amenability to
lower courts’ reliance on inherent powers, the two most compre-
hensive articles to consider when inherent powers may be used
agree with Hudson ’s standard and argue that federal courts may ex-
ercise inherent powers only when doing so is indispensable to their
exercise of the judicial power. Professor Van Alstyne has argued
that the Necessary and Proper Clause
assigns to Congress alone the responsibility to say by law what additional authority, if any, the executive and the courts are to have beyond that core of powers that are indispensable, rather than merely appropriate, or helpful, to the performance of their express duties under articles II and III of the Constitution. 73
Professor Pushaw, who has written the most detailed article
about inherent powers to date, proffers a similar argument. Profes-
sor Pushaw demarcates two categories of inherent powers: (1) im-
plied indispensable powers, which are “absolutely essential to fulfill
the Article III mandate”; and (2) beneficial powers, which are
70. 330 U.S. 501, 508 (1947).
- Id. at 508–09.
- Another example is Ex Parte Peterson , 253 U.S. 300 (1920), in which the Supreme Court recognized the inherent power to appoint an auditor to investigate the factual background of a case.
- Van Alstyne, supra note 16, at 107.
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Most vitally, in Michaelson v. United States ex rel. Chicago, St. Paul,
Minneapolis & Omaha Railway Co. , 78 the Supreme Court, while eval-
uating whether provisions of the Clayton Act circumscribing the
contempt power unconstitutionally infringed courts’ inherent pow-
ers,^79 explained that “the attributes which inhere in [the contempt]
power and are inseparable from it can neither be abrogated nor
rendered practically inoperative.” 80 At the same time, however, the
Court recognized that the contempt power “may be regulated
within limits not precisely defined.” 81 The Court concluded that
the statute was a legitimate form of regulation because it involved
only a narrow class of contempts, did not limit courts’ ability to
punish contempts that occurred in the courts’ presence, and was
carefully defined.^82 Thus, while Michaelson attempted rhetorically
to protect the prerogatives of the judiciary from legislative incur-
sion, it ultimately accepted the legislation’s curbing of the con-
tempt power. Michaelson is further devitalized by the Supreme
Court’s failure to apply the decision outside the context of
contempt. 83
In Eash , the Third Circuit attempted to refine Michaelson ’s
holding. The court divided inherent powers into various classes,
including powers “implied from strict functional necessity” 84 and
powers that are “necessary only in the practical sense of being use-
ful.”^85 The court concluded that the former strand of inherent
powers is protected by the rule articulated in Michaelson , while the
latter strand may be freely altered or invalidated by Congress. 86 Al-
though the Supreme Court declined to adopt this methodology in
Chambers ,^87 Professor Pushaw has further cultivated Eash ’s teach-
ings. According to Professor Pushaw, “[b]ecause the Constitution
grants federal judges implied indispensable powers, it surely does
78. 266 U.S. 42 (1924).
- Id. at 65–66.
- Id. at 66.
- Id.
- Id.
- The Court has, however, continued to recognize this limitation. See Chambers v. NASCO, Inc., 501 U.S. 32, 47–48 (1990); Link v. Wabash R.R. Co., 370 U.S. 626, 630–32 (1962); Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts , 45 D UKE L.J. 929, 968 (1996) (“The relation between ‘inherent power’ of the judiciary and powers that may not be withdrawn by Congress has never been illuminated by the Court for there has been no occasion to consider it.”).
- Eash v. Riggins Trucking Inc., 757 F.2d 557, 562 (3d Cir. 1985) (en banc).
- Id. at 563.
- See id. at 562–63.
- See supra note 74.
2008] BROAD INHERENT POWERS OF FEDERAL COURTS 53
not authorize Congress to destroy or impair them.” 88 On the other
hand, “federal courts must defer completely” to legislation regulat-
ing beneficial powers.^89
In sum, the inherent powers jurisprudence and scholarship is
plagued by inconsistency and uncertainty. The Supreme Court has
paid lip service to a standard that would rarely permit the lower
courts to invoke their inherent powers, but has then frequently ap-
proved invocations that do not satisfy that demanding standard.
Moreover, its only statement concerning Congress’s power to over-
rule an inherent power seems to entrench inherent powers, but this
standard has never been applied.
The commentators, on the other hand, attempt to constrict
the courts’ ability to rely on their inherent powers, notwithstanding
the bevy of cases to the contrary. The commentators argue that this
narrow approach, although impractical, is mandated by the intent
of the early Federalists. As demonstrated in the next section, this
assertion is faulty.
II. A NEW METHODOLOGY
While conventional wisdom holds that courts may invoke their
inherent powers only when doing so is indispensably necessary to
their exercise of the judicial power, the original understanding of
the early Federalists, Supreme Court precedent, and policy consid-
erations warrant a more flexible approach that permits courts to
invoke inherent powers whenever doing so possesses a natural rela-
tion to their exercise of the judicial power. Moreover, because in-
herent powers are derived from the Constitution, Congress’s ability
to abrogate them must be limited to instances where doing so will
not imperil courts’ core functions.
A. The “Proper” Scope of Inherent Powers— The Natural Relation Standard
1. The Early Federalists’ Broad Understanding of Inherent Powers
Contrary to commentators’ arguments that federal courts pos-
sess only those implied powers that are indispensable to their exer-
cising the judicial power, the historical evidence demonstrates that
the early Federalists understood courts to hold implied powers that
were either naturally related or directly connected to the judicial
- Pushaw, supra note 16, at 848.
- Id. at 849.
2008] BROAD INHERENT POWERS OF FEDERAL COURTS 55
that the newly created federal legislature did not overstep its
boundaries 93 —relied on the efficacy of the federal courts. It would
be impossible for the courts to meaningfully discharge these vital 94
duties if they did not have some inviolate power beyond the reach
of the legislature. 95 This point is recognized in the elaborate mea-
of things; some of which are incompatible with the interests of the union, and others with the principles of good government.... No man of sense will believe that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them.”).
- The Framers believed the federal legislature to be the most-feared branch of government. See THE FEDERALIST N O. 48 (James Madison), supra note 2, at 301(“The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.”). To check the advances of the federal legislature, the Framers relied on the federal courts to strike down laws repugnant to the Constitution. See 3 ELLIOT ’S D EBATES , supra note 90, at 553 (statement of John Marshall) (noting that if Congress “were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution,” and that the judges, therefore, “would declare it void”); THE F EDERALIST N O. 78 (Alexander Hamilton), supra note 2, at 473 (arguing that the limitations to legislative authority in the Constitution “can be preserved in practice no other way than through the medium of courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void”). Indeed, Professor Beard calculated that of the twenty-five men who were the dominant element in the Constitutional Convention, seventeen supported this kind of judicial review. CHARLES A. B EARD , T HE S UPREME C OURT AND THE C ONSTITUTION 17–18 (1912).
- By exercising these powers, the courts were designed to stand as the last bastion of the protection of individual liberties. See 2 ELLIOT ’S D EBATES , supra note 90, at 480–81 (statement of Mr. Wilson) (“I believe that public happiness, personal liberty, and private property, depend essentially upon able and upright determina- tions of independent judges.”); 3 id. at 554 (statement of John Marshall) (“To what quarter will you look for protection from an infringement on the Constitu- tion, if you will not give the power to the judiciary?”); THE FEDERALIST N O. 78 (Alexander Hamilton), supra note 2, at 473 (stating that without the courts, “all the reservations of particular rights or privileges would amount to nothing”). Despite some worries about the judiciary, see, e.g. , 3 ELLIOT ’S D EBATES , supra note 90, at 521 (statement of George Mason) (asking, given jurisdiction of federal courts, “What is there left to the state courts?”); 4 id. at 151 (statement of Mr. Bloodworth) (“[I]f I understand the thing right, the trial by jury is taken away.”), such fears had little currency, see, e.g. , William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776–1806 , 101 COLUM. L. R EV. 990, 1054 (2001) (“It seems doubtful that the judicial tyranny argu- ments had any traction in the convention. Virginia’s ratification, like that of Mas- sachusetts before it and New York later, included a list of suggested amendments to the Constitution, including several relating to the judiciary, but none seeking to compromise judicial independence or the power of federal judges to declare state as well as federal laws void and unconstitutional.”).
- Moreover, the idea that Congress could control the use of the judicial power was rejected in the Constitutional Convention, where the delegates rejected, by a vote of six states to two, a proposal to add a sentence stating: “In all the other
56 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 64:
sures contained in the Constitution to protect the independence of
the courts from the political branches. 96 There would be no reason
to protect courts’ formal independence if there were not some
power, unimpeachable by the political branches, vested solely in
the courts. That grant of power was unmistakably included in the
succinct phrase “the judicial power.”
b. Implied Powers = Necessary and Proper Powers
The Federalists, when confronted with the arguments of anti-
Federalists that the Necessary and Proper Clause would destroy all
semblance of a government of limited powers and annihilate the
states, 97 responded with near-universal voice that the Necessary and
Proper Clause merely made explicit the authority that the Constitu-
tion necessarily conferred by implication. George Nicholas, in the
Virginia Convention, explained that the Necessary and Proper
clause “only enables [Congress] to carry into execution the powers
given to them, but gives them no additional power.” 98 This belief
was widespread, 99 and indeed, explains why the Clause was added at
the Constitutional Convention without debate. 100
Critically, in presenting these arguments, the Federalists rested
on universal principles of government; that is, that the authority to
effectuate powers with necessary and proper means accompanied
every power granted by the Constitution. As Alexander Hamilton
stated in the Federalist:
cases before mentioned the Judicial power shall be exercised in such manner as the Legislature shall direct.” 2 FARRAND , supra note 92, at 425, 431; see also Lieb- man & Ryan, supra note 2, at 768–69 (emphasizing this decision as preserving “qualitative” judicial power).
- See U.S. C ONST. art. III, § 1 (“[J]udges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”); THE FEDERALIST N OS. 78, 79 (Alexander Hamilton) (discussing the importance of these guarantees).
- See 2 ELLIOT ’S D EBATES , supra note 90, at 331 (statement of Mr. Williams) (“It is perhaps utterly impossible fully to define this power.... A case cannot be conceived which is not included in this power.”); 3 id. at 441–42 (statement of George Mason) (worrying that Congress would be able to abridge the freedom of speech and destroy the right to a jury trial).
- 3 id. at 246.
- See, e.g. , 4 id. at 141 (statement of Mr. MacLaine) (“This clause gives no new power, but declares that those already given are to be executed by proper laws.”); Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause , 6 U. P A. J. C ONST. L. 183, 185 (2003).
- See Barnett, supra note 99, at 185.
