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04/19/2017

"Inherent" Judicial Power
Michael Ramsey

Yesterday's Supreme Court decision in Goodyear Tire and Rubber Co. v. Haeger unanimously held that federal courts have "inherent" power to sanction defendants for wrongfully withholding evidence, but only to the extent of actual harm caused to the plaintiff.  From the majority opinion (per Justice Kagan):

Federal courts possess certain “inherent powers,” not conferred by rule or statute, “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U. S. 626, 630–631 (1962). That authority includes “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U. S. 32, 44–45 (1991). And one permissible sanction is an “assessment of attorney’s fees”—an order, like the one issued here, instructing a party that has acted in bad faith to reimburse legal fees and costs incurred by the other side. Id., at 45.

Here is my brief comment on the idea of "inherent" powers, a concept that sometimes causes difficulties.  In our system of delegated powers, federal courts, like all other federal entities, can exercise only powers granted to them by the Constitution or federal law.  Any other conclusion violates the Tenth Amendment, which, though sometimes dismissed as a tautology, was added to the Constitution to make exactly this important point.  Calling something an "inherent" power does not obviate the need to find a source for it in the Constitution.  (The same important point applies to "inherent" executive powers of the President).  It would be better to call such things "independent constitutional powers" to emphasize that these are powers possessed independent of any grant from another branch but not powers possessed independent of the Constitution.

So does the Constitution grant federal courts independent constitutional powers such as the one posited in Goodyear?  Probably.  The only plausible constitutional source is Article III, Section 1, which declares that "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."  It's very likely that this provision conveys substantive power to decide cases and conduct judicial proceedings.  Nothing else in Article III conveys this power; if Article III does not convey it, federal courts (including the Supreme Court) depend on Congress to provide it, but that's not how Congress proceeded in the 1789 Judiciary Act, which established courts but did not give them all their necessary case-adjudicating powers.  As a result, assuming the sanctioning power was part of the traditional powers of courts, it would be conveyed to federal courts by Article III, Section 1, and thus is an independent constitutional power (or "inherent" power, if you prefer).

And by parallel reasoning, the textual source for "inherent" executive powers (such as foreign affairs powers) is Article II, Section 1.  See (of course) here.

But I wish Justice Kagan had cited Article III, Section 1 in that key paragraph, just to make it all clear.