The District of Columbia and Article III

66 Pages Posted: 13 May 2018 Last revised: 18 Jan 2019

Date Written: April 30, 2018


Today, it is black-letter law that Congress may create non-Article III courts in the District of Columbia and staff them with judges who lack salary protection and life tenure. Forty-five years ago, the Supreme Court upheld the non-Article III court system in the nation’s capital. And since that decision, judges and scholars alike have accepted that the District is an exception to Article III.

This Article challenges that consensus. Drawing upon new research into the original meaning of the Seat of Government Clause and early historical practice, it shows that Article III’s judicial protections were long believed to apply to the District. Furthermore, it shows that the various functional justifications for non-Article III adjudication do not apply to courts in the District. In short, this Article demonstrates that the current D.C. court system very likely violates Article III.

For residents of D.C. who have been deprived of their right to an Article III tribunal, this conclusion should be significant in its own right, as the right to an Article III judge has long been viewed as an essential constitutional protection. Indeed, the modern history of the D.C. court system reveals the troubling influence of crime and race on Congress’s decision to create a non-Article III court system in the nation’s capital. But the historical research presented in this Article also has broader implications outside the Seat of Government. Most directly, it suggests a new limit on Congress’s power to create non-Article III tribunals on public lands.

Suggested Citation

Durling, James, The District of Columbia and Article III (April 30, 2018). 107 Georgetown Law Journal (2019 Forthcoming). Available at SSRN: or

James Durling (Contact Author)

Independent ( email )

No Address Available

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