A Note on Non-Article III Courts
There are at least three categories of adjudication that occur under the federal Constitution. First, under Article III, life-tenured judges exercise the judicial power of the United States as defined in Article III. Supreme Court Justices are the only Article III judges established in the Constitution. All other Article III judgeships are created by statute. The second category is made up of Article I judges and courts. These judges are appointed and confirmed in the same manner as Article III judges and Article II Cabinet secretaries. The four national Article I courts derive their power from the powers given by Article I to the Congress: the payment of money owed by the United States, taxation, regulation of the armed forces, and the governance of the District of Columbia and the territories. Most Article I judges have a statutory equivalent of life tenure and salary protection. The third category of adjudicators is career employees of the executive branch. This is by far the largest group, consisting of around 4,000 individuals organized into hundreds of categories. Some have special career tenure protection. Others have no tenure protection other than civil service. And some are political appointees with no career protection. Most of these executive-branch adjudicators are subject to review by political appointees, either in departments or by independent regulatory commissions. In turn, the political appointees' decisions can be reviewed in Article I or Article III courts.
Judges in federal territories are created under Congress's Article IV power to govern federal territory, and judges in the District of Columbia are created pursuant to Congress's Article I power to govern the federal capital. These judges have never had life tenure or salary guarantees. William Marbury, for instance, held his commission as a Justice of the Peace for the District of Columbia under a five-year term of office; and judges today in Guam and the Virgin Islands have ten-year terms of office and no constitutional salary guarantees. (Judges in American Samoa have indefinite terms of office.) Although a lower court in 1803 held unconstitutional the absence of salary guarantees for these judges, the Supreme Court, in American Insurance Co. v. 356 Bales of Cotton (1828), broadly approved the use of non-Article III tribunals in federally governed territory on the ground that their jurisdiction "is not a part of the judicial power" described in Article III. Accordingly, tribunals in federal territories may determine all kinds of cases, including criminal cases, without necessarily conforming to the requirements of Article III.
Military courts-martial also exercise essentially criminal jurisdiction, though in a limited sphere. The members of courts-martial need not have Article III tenure and salary guarantees; their authority stems instead from the President's Article II executive power as commander in chief and from Congress's Article I powers to "make Rules for the Government and Regulation of the land and naval Forces" and to "provide for...disciplining, the Militia." As the Supreme Court held in 1857 in Dynes v. Hoover,
[t]hese provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power....
Sovereign immunity provided the rationale for the first major creation of a non-Article III court under Congress's Article I powers: the Court of Claims. For the first seventy-nine years of the Republic, there was no remedy against the federal government for takings of property, breaches of contract, or governmental torts. Relief against virtually any legal wrong, except imprisonment, was at the whim of the federal government. The only remedy was to implore Congress for a private bill of relief. By the 1850s, over 20,000 such bills were pending. Few were dealt with, and corruption in the passage of some resulted in scandal. In 1855, the Congress created the Court of Claims to deal with the claims that had led to private bills. In 1887, Congress enacted the Tucker Act, creating a life-tenured panel of five judges that heard any claim for money against the United States based on the Constitution, statute, regulation, or contract. Only tort claims were left to congressional discretion. This limitation ended in 1947, when the Congress waived sovereign immunity for torts and gave to Article III courts jurisdiction over tort claims subject to limitations, the most significant of which was the denial of a jury trial.
Modern statutes permit tax-refund actions, tort actions, and some contract or takings claims involving small amounts to be brought in Article III courts, but many statutory waivers of sovereign immunity require suit to be brought in non-Article III tribunals. Because Congress does not have to permit suit at all, it can set conditions on those suits to which it has consented. United States v. Sherwood (1941). Today, the principal non-Article III tribunals that hear such cases include the Court of Federal Claims, which adjudicates claims against the United States founded in contracts, statutes, regulations, or takings; the Tax Court, which allows taxpayers to challenge their tax liability without first paying the tax and then filing for a refund; and the Court of Veterans Appeals, which determines claims by veterans under relevant benefits statutes. The United States Court of Appeals for the Armed Forces was established to provide a civilian court for the review of court-martial criminal sentences.
All of the national Article I courts are subject to Article III appellate review. The Court of Federal Claims and the Court of Veterans Appeals are subject to appellate review by the Court of Appeals for the Federal Circuit. The Tax Court is subject to appellate review by the circuit in which the taxpayer resides. The United States Court of Appeals for the Armed Forces is subject to Supreme Court review. All Article I judges are appointed by the President with Senate confirmation. They are thus officers of the United States, unlike administrative judges. Their salaries are statutorily tied to district or circuit judge salaries. They all have lengthy tenure by statute, as well as senior status systems, which in the case of the Tax Court and Court of Federal Claims are similar to those of Article III judges.
The most sweeping rationale for non-Article III tribunals is the so-called public rights doctrine. This doctrine originated in 1856 in Murray's Lessee v. Hoboken Land & Improvement Co., in which the Supreme Court permitted the government to adjudicate deficiencies against its own tax collectors without full judicial process. "Public rights" in that context meant rights of the public against certain government officials. Modern cases, however, have permitted ordinary administrative agencies to adjudicate even purely private common-law rights on the theory that such rights are "public" whenever they are ancillary to a regulatory scheme. Thus, for example, the Commodity Futures Exchange Commission has been allowed to adjudicate common-law counterclaims resulting from transactions within its enforcement jurisdiction. Commodity Futures Trading Commission v. Schor (1986). This rationale obviously validates as well ordinary agency adjudication in the administration of regulatory programs. The limits, if any, of Congress's power to entrust adjudication to non-Article III decision-makers is uncertain. Nor is it clear to what extent decisions of non-Article III tribunals must be subject to appellate review in Article III courts, although Congress by statute has generally made such review available.
As a matter of original understanding, executive adjudication may seem problematic, but not all adjudication (understood as the application of legal standards to particular facts) requires an exercise of the judicial power. Many exercises of Article II "executive Power" are functionally indistinguishable from exercises of the "judicial Power," which is not surprising given the close historical and conceptual connections between executive and judicial power. So long as a particular exercise of power, such as a court-martial or a benefit determination, meets the constitutional definition of "executive Power," it need not be performed by an Article III judge, even if could be performed by such a judge. There can be areas of overlap between the executive and judicial powers, which gives Congress a measure of freedom as to which department to charge with particular adjudicative tasks. The task of figuring out which adjudicative functions, if any, must be performed only by Article III courts has perplexed originalists and nonoriginalists alike for more than two centuries.
- Loren A. Smith
- Senior Judge
- United States Court of Federal Claims
- Gary Lawson
- Abraham & Lillian Benton Scholar
- Professor of Law
- Boston University School of Law