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Article I Tribunals, Article III Courts, and the Judicial Power of the United States

James E. Pfander

Northwestern University School of Law

Harvard Law Review, Vol. 118, December 2004

We lack an entirely convincing account of the scope of Congress's power under the Constitution to create Article I tribunals and invest them with authority to adjudicate disputes that seemingly come within the scope of Article III. The literal terms of Article III have seemed to many to rule out reliance upon Article I tribunals altogether; the provision vests the judicial power of the United States in federal courts whose judges enjoy salary and tenure protections that were designed to ensure judicial independence in a scheme of separated powers. Judges of Article I tribunals - including territorial courts, courts-martial, and administrative agencies - often serve without such protections, and the transfer of work to them seems to threaten judicial independence. Yet the literal account does not well explain the proliferation of Article I tribunals, which have grown up and flourished throughout the nation's history. This institutional history of Article I adjudication explains the need for alternative accounts, but none of the competitors resolves the problem. The balancing test, which the Supreme Court now appears to prefer, acknowledges some role for Article I tribunals, but fails to provide clear guidelines as to when Congress may sidestep Article III. A more promising academic theory - the appellate review account - emphasizes the need for appellate review in constitutional courts as the key to Article I adjudication. While it offers greater coherence, it does not fit especially well with our institutional history, and it would seemingly authorize some arrangements that depart dramatically from current law.

This Article develops a new "inferior tribunals" account of the interplay between Article I and Article III. Building on the constitutional distinction between "inferior tribunals" (in Article I) and "inferior courts" (in Article III), the Article suggests a new textual foundation for Article I tribunals. In particular, the Article contends that Congress may constitute inferior tribunals to hear matters that it has structured to fall outside the judicial power of the United States under Article III. Such non-Article III matters have traditionally included a range of familiar proceedings: public-rights claims (where the lack of finality precluded judicial involvement); courts-martial proceedings (which were assigned to the military for handling outside Article III); and local matters before territorial courts (which were understood to differ importantly from the nationally uniform rules of law that Article III courts were expected to enforce). The Article further suggests that the constitutionality of Article I tribunals requires that the tribunals remain inferior to the judicial department of the United States. Based upon the text of Article I, the inferiority requirement draws its strength from an institutional history that features widespread judicial oversight of Article I adjudication. The judicial department has preserved the inferiority of Article I tribunals with a variety of tools - including habeas corpus, mandamus, and officer suit litigation. While the inferior tribunals account does not demand appellate review in every case, it does secure the Court's role as the final expositor of federal law.

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Date posted: April 21, 2004  

Suggested Citation

Pfander, James E., Article I Tribunals, Article III Courts, and the Judicial Power of the United States. Harvard Law Review, Vol. 118, December 2004. Available at SSRN: http://ssrn.com/abstract=533862

Contact Information

James E. Pfander (Contact Author)
Northwestern University School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
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