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Inherently Difficult: Inherent Authority of the Courts and the Separation of Powers

By Eric L. Lipman

An interesting Memorandum Opinion and Order issued by the U.S. District Court for the District of Minnesota earlier this month has had me thinking.

At issue in the case was whether a local federal Magistrate could direct a senior official from the U.S. Department of Justice ? one with enough settlement authority to resolve a high-profile Federal Tort Claims Act suit ? to participate in a settlement conference. The Department had earlier sought leave for such a high-level official to be excused from the discussions; a request that was granted. Yet, when settlement talks later broke down, in part because of the limits on the authority of the official that the Department did send to the talks, the Magistrate ordered the needed official to be available by telephone. Objecting, the Department of Justice asserted that such a directive violated the separation of powers between the Executive and Judicial branches.

Disagreeing, U.S. District Court Judge John R. Tunheim held that ?district courts possess the inherent authority to ensure the efficient and orderly administration of justice;? powers that include the authority to make small and measured claims upon the time of senior Executive Branch officials.

While the matter is no doubt correctly decided under existing precedent, the case had me wondering about the tensions between the court?s role as a stakeholder in this separation of powers dispute ? after all, it wants efficient and orderly settlement processes for the cases on its own docket ? and its role as the arbiter of the separation of powers dispute. I wondered how the federal courts might react if the roles in the case were reversed: For example, what would be the reply if Congress used its budget authority to require that if agency officials were summoned by the District Courts, the hourly wage rate of these officials would be deducted from the court?s appropriations and transferred to the agency sending the official? Similarly, what would be the response if the President insisted that District Court Judges who sentence federal criminals be made available for later questioning by the President, as an indispensable support to the exercise of the President?s pardon powers? And if these examples are not quite right, are there instances in which court personnel must unquestionably yield to processes managed solely by another branch?

The Memorandum Opinion and Order, and the Court?s complete analysis, is accessible here.

Full post as published by Within the Scope on May 17, 2008 (boomark / email).