A Note on Non-Article III Courts
Article III vests the “judicial Power of the United States” in judges of the supreme and inferior federal courts. It then specifies that all of those judges “shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.” The “judicial Power” is quintessentially the power to adjudicate disputes in accordance with governing law. Nonetheless, most federal adjudications are conducted by persons who are not Article III federal judges. Determining whether and how federal adjudication by non-judges is constitutionally permissible is one of the longest-lived and most perplexing questions in all of constitutional law.
There are three categories of federal adjudication that occur under the Constitution. First, under Article III, life-tenured judges, on both the Supreme Court and the inferior federal courts, exercise the judicial power of the United States as defined in Article III.
The second category of adjudications is conducted by “judges” and “courts,” created under either Article I or Article IV, who do not satisfy the criteria specified in Article III. These judges are often appointed and confirmed in the same manner as Article III judges but do not enjoy constitutional protections of life tenure or guarantees against diminishment in salary, though Congress by statute generally provides some measure of (revocable) tenure in office and salary protection. In addition, the work of Article III judges is often supplemented by federal magistrates, who are appointed by federal district judges to eight-year terms and who preside over many pretrial matters. The four national Article I courts—the Court of Federal Claims, the Tax Court, the Court of Appeals for the Armed Forces, and the Court of Veterans Appeals—and the local courts for the District of Columbia derive their authority from various powers given by Article I to Congress: the payment of money owed by the United States, taxation, regulation of the armed forces, and the governance of the District of Columbia. The Article IV territorial courts—for Guam, the Virgin Islands, the Northern Mariana Islands, and American Samoa—derive their authority from Congress’s power to govern federal territories.
The third category of adjudicators is career employees of the executive branch; immigration judges, for example, are employees of the United States Department of Justice. This is by far the largest group, consisting of around four thousand 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.
Territorial judges (including in this category judges for the District of Columbia) have been around since the founding. These judges have never had life tenure or salary guarantees. William Marbury, for instance, held his commission by John Adams as a justice of the peace for the District of Columbia under a five-year term of office; and judges today in Guam, the Virgin Islands, and the Northern Mariana Islands have ten-year terms of office and no constitutional salary guarantees. Judges in American Samoa, who are appointed by the secretary of the interior, 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, Canter (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 that 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. Some originalists (and non-originalists) find this jurisdiction incompatible with Article III’s declaration that federal judicial power can only be exercised by Article III judges, but the authority of territorial judges has been settled by history established contemporaneously with the Constitution.
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 Dynes v. Hoover (1857),
[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. . . .
Military justice, in other words, is an exercise of executive and legislative rather than judicial power.
Sovereign immunity provided the rationale for the creation of the first major 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 legally enforceable 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, more than twenty thousand such bills were pending. Few were dealt with, and corruption in the passage of some resulted in scandal. In 1855, Congress created the Court of Claims to deal with the claims that had led to private bills. In 1887, Congress passed the Tucker Act, creating a life-tenured panel of five judges who 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. In 1947, Congress also waived sovereign immunity for (at least some) torts and gave to Article III courts jurisdiction over tort claims, subject to certain procedural limitations such as 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, including having the “suit” heard by a non–Article III “judge.” 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, who the lower courts have held can be appointed without compliance with the Appointments Clause. 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 federal bankruptcy courts merit special mention. Congress has Article I power to establish uniform bankruptcy rules. Most claims by and against estates in bankruptcy are determined—with finality if there is no appeal—by non–Article III bankruptcy judges, subject to limited appellate review by Article III district judges. The Supreme Court has determined on several occasions that the bankruptcy judges cannot decide common-law contract or tort actions that arise independently from the regulatory regime constructed by the bankruptcy laws. See, e.g, Stern v. Marshall (2011). These cases assume, however, that Congress can allow bankruptcy judges to address in the first instance all non-collateral matters that concern the bankruptcy proceeding.
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. More broadly, public rights were understood in 1932 to involve matters “between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” Crowell v. Benson. This broader notion of “public rights” could arguably permit non–Article III adjudication in any cases in which the government is a party pursuant to a regulatory scheme (which, as a matter of original meaning, might seem to be precisely the cases in which requiring an independent Article III judge and a jury would be most appropriate). 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 the 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 of any kind may seem problematic, but matters are actually more complicated. 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 non-originalists alike for more than two centuries. It has also perplexed the courts—the Supreme Court divided four-one-four on the proper approach to these questions in 2011. See Stern v. Marshall (in which the Court held unconstitutional a congressional delegation of jurisdiction to the bankruptcy court to determine an issue that was a matter of state common law).
Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915 (1988)
Gary Lawson & Guy Seidman, The Constitution of Empire: Territorial Expansion and the American Legal History, 139–150 (2004)
James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643–776 (2004)
Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L.J. 197 (1983)
Craig A. Stern, What's a Constitution Among Friends?—Unbalancing Article III, 146 U. Penn. L. Rev. 1043 (1998)
United States v. More, 7 U.S. (3 Cranch) 159 (1805)
American Insurance Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828)
Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856)
Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857)
Crowell v. Benson, 285 U.S. 22 (1932)
United States v. Sherwood, 312 U.S. 584 (1941)
Palmore v. United States, 411 U.S. 389 (1973)
Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)
Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986)
Stern v. Marshall, 131 S. Ct. 2594 (2011)