








































Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community for help and clear up your study doubts
Discover the best universities in your country according to Docsity users
Free resources
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
An in-depth analysis of the inherent powers of federal courts, discussing specific situations where these powers can be used, the level of necessity required, and how broadly Congress can abrogate rules based on inherent powers. It also explores the historical context and policy reasons supporting a broad view of inherent powers.
What you will learn
Typology: Study notes
1 / 48
This page cannot be seen from the preview
Don't miss anything!
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.
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.
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.
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
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-
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.”).
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.
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
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
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
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
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
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.”).
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).