join, dissenting from the order declining hearing en banc.
It is the right, privilege, and duty of the courts to assure that the constitutional safeguards are preserved. No safeguard is more fundamental than the separation of governmental power, the checks and balances, among the three branches. This case is not about the cost of living. It is about the balance of governmental power.
The action of the Congress in recent years, to withhold from the judges the monetary adjustment that is provided to all others serving the federal government, is as petty as it is unconstitutional. The Framers were concerned that Congress, if unchecked, would dominate the coordinate branches through the power of the purse. See The Federalist No. 18, 308, 310 (James Madison)(Clinton Rossiter ed., 1961) (the most difficult task was to provide “practical security for each against the invasion of others” and particularly of the legislature, who as sole possessor of the fiscal power “can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments.”) Madison cautioned that as “the legislative department alone has access to the pockets of the people” it has “a prevailing influence, over the pecuniary rewards of those who fill the other departments.” Id. at 310.
The Framers recognized that an independent judiciary is the bulwark of justice—
independent not in the sense that they shall not co-operate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments.
O’Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 77 L.Ed. 1356 (1933). It is our judicial duty to act, with vigor and determination, to sustain this fundamental structure, to set aside any action of the legislative that departs from *1094the constitutional design. In securing the Constitution, “no restriction upon its plain and obvious import ought to be admitted, unless the inference is irresistible.” Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 338-39, 4 L.Ed. 97 (1816). The Court has well recognized the significance of control of judicial compensation in the federal structure:
[Tjhere rests upon every federal judge affected nothing less than a duty to withstand any attempt, directly or indirectly in contravention of the Constitution, to diminish this compensation, not for his own private advantage — which, if that were all, he might willingly fore-go — but in the interest of preserving unimpaired an essential safeguard adopted as a continuing guaranty of an independent judicial administration for the benefit of the whole people.
O’Donoghue, 289 U.S. at 533, 53 S.Ct. 740.
This concern for judicial independence is now, once more, presented for judicial resolution. Today’s politics-driven tweaking of the judiciary is, at bottom, an assault on the balance between the judicial and the political branches of government. The implicit ratification, by a panel of this court, of Congress’ actions — both the tying of judges’ compensation to that of Congress and the withdrawal from judges of the statutory adjustment provided to all federal employees — is a misreading of precedent as well as of the Constitution.
The separation of powers is not only the balance and check upon the powers of the other branches; it is also the fulcrum of the institution of judicial review of legislative and executive action. The cavalier actions here at issue belie their significance to the nation; they confirm the prescience of the Framers in imparting constitutional force to insulation of the judiciary from politically motivated pay reduction:
In framing the Constitution, therefore, the power to diminish the compensation of federal judges was explicitly denied, in order, inter alia, that their judgment or action might never be swayed in the slightest degree by the temptation to cultivate the favor or avoid the displeasure of that department which, as master of the purse, would otherwise hold the power to reduce their means of support.
O’Donoghue, 289 U.S. at 531, 53 S.Ct. 740.
The nineteen judges who have come forward as plaintiffs, the split decision of the panel, the carefully reasoned district court decision, and the national concern for proper exercise of governmental power, warrant the attention of our full court. From the refusal of the court to consider this matter en banc I must, respectfully, dissent.