Although Article III of the Constitution authorizes Congress to “ordain and establish” a federal court system staffed by judges with life tenure and salary protections, not all federal adjudicative bodies have been erected on this basis. Since early in the nation's history, Congress has also seen fit to establish courts outside of Article III, staffed by judges who lack the assurances of judicial independence that Article III provides. Scholars and jurists worry that, by creating these tribunals and staffing them with compliant judges, Congress may circumvent the assurances of judicial independence in Article III and undermine the security of constitutional rights.
The Supreme Court has mostly upheld Congress's power to create non-Article III tribunals. Early decisions approved the establishment of courts martial and territorial courts. For example, American Insurance Company v. Canter, U.S. (1 Pet.) 511 ( 1828 ), upholds the power of Congress to create territorial courts, and Dynes v. Hoover, U.S. (20 How.) 65 ( 1857 ), upholds courts martial. More recent decisions have upheld the District of Columbia court system and the power of Congress to create administrative tribunals: Crowell v. Benson, 285 U.S. 22 ( 1932 ), which upholds the power of the agency commissioner to make proposed findings of fact and law, subject to Article III review, and Palmore v. United States, 411 U.S. 389 ( 1973 ), upholding the power of territorial courts in District of Columbia to adjudicate federal criminal proceedings. As of 2014, the federal government employed more administrative law judges in one agency alone (the Social Security Administration) than federal judges in the Article III judiciary.
Despite its grudging approval of the practice, however, the Court has placed limits on congressional power. For example, the Court has indicated that Congress may assign preliminary adjudication to fact-finding adjuncts and agencies, so long as it provides for review of legal issues in an Article III court. Moreover, the Court invalidated the 1978 bankruptcy law on the ground that it conferred too many elements of the judicial power on non–Article III bankruptcy judges in Northern Pipeline Construction v. Marathon Pipe Line, 458 U.S. 50 ( 1982 ). More recently, the Court reaffirmed its concern with the creation of bankruptcy courts with freestanding powers of adjudication in Stern v. Marshall, 131 S. Ct. 2594 ( 2011 ). In doing so, the Court suggested that although it may not overturn existing non–Article III tribunals, it will not readily approve new categories of non–Article III adjudication. So long as Congress preserves the possibility of oversight by Article III courts and respects the Court's ultimate supremacy, provisions for initial non– Article III adjudication should pose little threat to judicial independence.
SEE ALSO Constitution ; Federal Court Jurisdiction ; Territorial Government .
Fallon, Jr., Richard H. “Of Legislative Courts, Administrative Agencies, and Article III.” Harvard Law Review 101, no. 5 (March 1988): 915–92.
Pfander, James E. “Article I Tribunals, Article III Courts, and the Judicial Power of the United States.” Harvard Law Review 118, no. 2 (December 2004): 643–776.
James E. Pfander
Northwestern University School of Law