Congressional Power, Public Rights and Non-Article III Adjudication
68 Pages Posted: 10 Nov 2022 Last revised: 4 Jan 2023
Date Written: 2022
When can Congress vest in administrative agencies or other non-Article III federal courts the power to adjudicate any of the nine types of “Cases” or “Controversies” listed in Article III of the United States Constitution? The core doctrine holds that Congress may employ non-Article III adjudicators in territorial courts, in military courts, and for decision of matters of public right. Scholars have criticized this so-called “public rights” doctrine as incoherent but have struggled to offer a more cogent answer.
This Article provides a new, overarching explanation of when and why Congress may use non-Article III federal officials to adjudicate matters of public right as well as matters in territorial and military courts. We reorganize the traditional categories into three overlapping spheres where such non-Article III adjudication may occur: (1) a case occurs in a physical space beyond the control of the states and therefore does not implicate preexisting state decisional primacy over matters of private right (e.g., territorial courts); (2) a case lies within the national government’s operational space, in which Congress and the Executive cooperate to manage the government’s internal affairs (e.g., via courts martial) and to administer statutorily created rights or benefits (e.g., a grant of a land or invention patent); or (3) a case involves a claim against a private party brought by the government or another private party within a properly bounded enforcement space of a federal regulatory scheme (e.g., NLRB adjudication of labor-management disputes). Our account of the public rights doctrine is functionally grounded but also deeply rooted in history. This account both explains the case law and squares the doctrine with the modern ubiquity of non-Article III adjudication.
Keywords: Article III, federalism, non-Article III adjudication, non-Article III tribunal, private right, public right, public rights doctrine, territorial courts, courts-martial, Murray's Lessee, Freedmen's Bureau, Crowell, Atlas Roofing, Union Carbide, Oil States, Jarkesy
JEL Classification: K23, K41
Suggested Citation: Suggested Citation