Congressional Power, Public Rights and Non-Article III Adjudication

72 Pages Posted: 10 Nov 2022 Last revised: 20 Mar 2024

See all articles by John M. Golden

John M. Golden

University of Texas at Austin - School of Law

Thomas H. Lee

Fordham University School of Law

Date Written: 2023


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

Golden, John M. and Lee, Thomas H., Congressional Power, Public Rights and Non-Article III Adjudication (2023). 98 Notre Dame L. Rev. 1113 (2023), Fordham Law Legal Studies Research Paper No. 4253085, U of Texas Law, Legal Studies Research Paper , Available at SSRN: or

John M. Golden (Contact Author)

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

Thomas H. Lee

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
212.636.6728 (Phone)

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