Annotation 1 - Article III

Section 1. The judicial Power of the United States


The Constitution is almost completely silent concerning the organization of the federal judiciary. ''That there should be a national judiciary was readily accepted by all.'' 1 But whether it was to consist of one high court at the apex of a federal judicial system or a high court exercising appellate jurisdiction over state courts that would initially hear all but a minor fraction of cases raising national issues was a matter of considerable controversy. 2 The Virginia Plan provided for a ''National judiciary [to] be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature. . . . '' 3 In the Committee of the Whole, the proposition ''that a national judiciary be established'' was unanimously adopted, 4 but the clause ''to consist of One supreme tribunal, and of one or more inferior tribunals'' 5 was first agreed to, then reconsidered, and the provision for inferior tribunals stricken out, it being argued that state courts could adequately adjudicate all necessary matters while the supreme tribunal would protect the national interest and assure uniformity. 6 Wilson and Madison thereupon moved to authorize Congress ''to appoint inferior tribunals,'' 7 which carried the implication that Congress could in its discretion either designate the state courts to hear federal cases or create federal courts. The word ''appoint'' was adopted and over the course of the Convention changed into phrasing that suggests something of an obligation on Congress to establish inferior federal courts. 8 The ''good behavior'' clause excited no controversy, 9 while the only substantial dispute with regard to denying Congress the power to intimidate judges through actual or threatened reduction of salaries came on Madison's motion to bar increases as well as decreases. 10  

One Supreme Court

The Convention left up to Congress decision on the size and composition of the Supreme Court, the time and place for sitting, its internal organization, save for the reference to the Chief Justice in the impeachment provision, 11 and other matters. These details Congress filled up in the Judiciary Act of 1789, one of the seminal statutes of the United States. 12 By the Act, the Court was made to consist of a Chief Justice and five Associate Justices. 13 The number was gradually increased until it reached a total of ten under the act of March 3, 1863. 14 As one of the Reconstruction Congress' restrictions on President Andrew Johnson, the number was reduced to seven as vacancies should occur. 15 The number actually never fell below eight before the end of Johnson's term, and Congress thereupon made the number nine. 16  

Proposals have been made at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to Senator Wheeler in 1937 expressed doubts concerning the validity of such a device and stated that ''the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts.'' 17  

Congress has also determined the time and place of sessions of the Court. It utilized this power once in 1801 to change its terms so that for fourteen months the Court did not convene, so as to forestall a constitutional attack on the repeal of the Judiciary Act of 1801. 18  

Inferior Courts

Congress also acted in the Judiciary Act of 1789 to create inferior courts. Thirteen district courts were constituted to have four sessions annually, 19 and three circuit courts were established to consist jointly of two Supreme Court justices each and one of the district judges of such districts which were to meet twice annually in the various districts comprising the circuit. 20 This system had substantial faults in operation, not the least of which was the burden imposed on the Justices who were required to travel thousands of miles each year under bad conditions. 21 Despite numerous ef forts to change this system, it persisted, except for one brief period, until 1891. 22 Since then, the federal judicial system has consisted of district courts with original jurisdiction, intermediate appellate courts, and the Supreme Court.

Abolition of Courts .--That Congress ''may from time to time ordain and establish'' inferior courts would seem to imply that the system may be reoriented from time to time and that Congress is not restricted to the status quo but may expand and contract the units of the system; but if the judges are to have life tenure what is to be done with them when the system is contracted? Unfortunately, the first exercise of the power occurred in a highly politicized situation, and no definite answer emerged. By the Judiciary Act of February 13, 1801, 23 passed in the closing weeks of the Adams Administration, the districts were reorganized, and six circuit courts consisting of three circuit judges each were created. Adams filled the positions with deserving Federalists, and upon coming to power the Jeffersonians set in motion plans to repeal the Act, which were carried out. 24 No provision was made for the displaced judges, apparently under the theory that if there were no courts there could be no judges to sit on them. 25 The validity of the repeal was questioned in Stuart v. Laird, 26 where Justice Paterson scarcely noticed the argument in rejecting it.

Not until 1913 did Congress again utilize its power to abolish a federal court, this time the unfortunate Commerce Court, which had disappointed the expectations of most of its friends. 27 But this time Congress provided for the redistribution of the Commerce Court judges among the circuit courts as well as a transfer of its jurisdiction to the district courts.


Diminution of Salaries .--''The Compensation Clause has its roots in the longstanding Anglo-American tradition of an independent Judiciary. A Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims de cided by judges who are free from potential domination by other branches of government.'' 28 Thus, once a salary figure has gone into effect, Congress may not reduce it nor rescind any part of an increase, although prior to the time of its effectiveness Congress may repeal a promised increase. This decision was rendered in the context of a statutory salary plan for all federal officers and employees under which increases went automatically into effect on a specified date. Four years running, Congress interdicted the pay increases, but in two instances the increases had become effective, raising the barrier of this clause. 29  

Also implicating this clause was a Depression-era appropriations act reducing ''the salaries and retired pay of all judges (except judges whose compensation may not, under the Constitution, be diminished during their continuance in office),'' by a fixed amount. While this provision presented no questions of its own constitutionality, it did require an interpretation of which judges the clause applied to in order to prevent the reductions. Judges in the District of Columbia were held protected by Article III, 30 while, on the other hand, salaries of the judges of the Court of Claims, that being a legislative court, were held subject to the reduction. 31  

In Evans v. Gore, 32 the Court invalidated the application of the income tax law to a federal judge, over the strong dissent of Justice Holmes, who was joined by Justice Brandeis. This ruling was extended, in Miles v. Graham, 33 to exempt the salary of a judge of the Court of Claims appointed subsequent to the enactment of the taxing act. Evans v. Gore was disapproved, and Miles v. Graham was in effect overruled in O'Malley v. Woodrough, 34 where the Court upheld section 22 of the Revenue Act of 1932, which extended the application of the income tax to salaries of judges taking office after June 6, 1932. Such a tax was regarded neither as an unconstitutional diminution of the compensation of judges nor as an encroachment on the independence of the judiciary. 35 To subject judges who take office after a stipulated date to a nondiscriminatory tax laid generally on an income, said the Court ''is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering.'' 36  

Courts of Specialized Jurisdiction

By virtue of its power ''to ordain and establish'' courts, Congress has occasionally created courts under Article III to exercise a specialized jurisdiction. These tribunals are like other Article III courts in that they exercise ''the judicial power of the United States,'' and only that power, that their judges must be appointed by the President and the Senate and must hold office during good behavior subject to removal by impeachment only, and that the compensation of their judges cannot be diminished during their continuance in office. One example of such courts was the Commerce Court created by the Mann- Elkins Act of 1910, 37 which was given exclusive jurisdiction of all cases to enforce orders of the Interstate Commerce Commission except those involving money penalties and criminal punishment, of cases brought to enjoin, annul, or set aside orders of the Commission, of cases brought under the act of 1903 to prevent unjust discriminations, and of all mandamus proceedings authorized by the act of 1903. This court actually functioned for less than three years, being abolished in 1913, as was mentioned above.

Another court of specialized jurisdiction, but created for a limited time only, was the Emergency Court of Appeals organized by the Emergency Price Control Act of January 30, 1942. 38 By the terms of the statute, this court consisted of three or more judges designated by the Chief Justice from the judges of the Untied States district courts and circuit courts of appeal. The Court was vested with jurisdiction and powers of a district court to hear appeals filed within thirty days against denials of protests by the Price Administrator and with exclusive jurisdiction to set aside regulations, orders, or price schedules, in whole or in part, or to remand the proceeding, but the court was tightly constrained in its treatment of regulations. There was interplay with the district courts, which were charged with authority to enforce orders issued under the Act, although only the Emergency Court had jurisdiction to determine the validity of such orders. 39  

Other specialized courts are the Court of Appeals for the Federal Circuit, which is in many respects like the geographic circuits. Created in 1982, 40 this court has exclusive jurisdiction to hear appeals from the United States Court of Federal Claims, from the Federal Merit System Protection Board, the Court of International Trade, the Patent Office in patent and trademark cases, and in various contract and tort cases. The Court of International Trade, which began life as the Board of General Appraisers, became the United States Customs Court in 1926, and was declared an Article III court in 1956, came to its present form and name in 1980. 41 The Judicial Panel on Multidistrict Litigation, staffed by federal judges from other courts, is authorized to transfer actions pending in different districts to a single district for trial. 42  

To facilitate the gathering of foreign intelligence information, through electronic surveillance, search and seizure, as well as other means, Congress authorized in 1978 a special court, composed of seven regular federal judges appointed by the Chief Justice, to receive applications from the United States and to issue warrants for intelligence activities. 43  

Even greater specialization is provided by the special court created by the Ethics in Government Act; 44 the court is charged, upon the request of the Attorney General, with appointing an independent counsel to investigate and prosecute charges of illegality in the Executive Branch. The court also has certain supervisory powers over the independent counsel.

Legislative Courts: The Canter Case

Legislative courts, so-called because they are created by Congress in pursuance of its general legislative powers, have comprised a significant part of the federal judiciary. 45 The distinction between constitutional courts and legislative courts was first made in American Ins. Co. v. Canter, 46 which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four-year term in office. Said Chief Justice Marshall for the Court: ''These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3rd article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States.'' 47 The Court went on to hold that admiralty jurisdiction can be exercised in the States only in those courts which are established in pursuance of Article III but that the same limitation does not apply to the territorial courts, for in legislating for them ''Congress exercises the combined powers of the general, and of a state government.'' 48  

Canter postulated a simple proposition: ''Constitutional courts exercise the judicial power described in Art. III of the Constitution; legislative courts do not and cannot.'' 49 A two-fold difficulty at tended this proposition, however. Admiralty jurisdiction is included within the ''judicial power of the United States'' specifically in Article III, requiring an explanation how this territorial court could receive and exercise it. Second, if territorial courts could not exercise Article III power, how might their decisions be subjected to appellate review in the Supreme Court, or indeed in other Article III courts, which could exercise only Article III judicial power? 50 Moreover, if in fact some ''judicial power'' may be devolved upon courts not having the constitutional security of tenure and salary, what prevents Congress from undermining those values intended to be protected by Article III's guarantees by giving jurisdiction to nonprotected entities that, being subjected to influence, would be bent to the popular will?

Attempts to explain or to rationalize the predicament or to provide a principled limiting point have from Canter to the present resulted in ''frequently arcane distinctions and confusing precedents'' spelled out in cases comprising ''landmarks on a judicial 'darkling plain' where ignorant armies have clashed by night''. 51 Nonetheless, Article I courts are quite usual entities in our judicial system. 52  

Power of Congress Over Legislative Courts .--In creating legislative courts, Congress is not limited by the restrictions imposed in Article III concerning tenure during good behavior and the prohibition against diminution of salaries. Congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the Tax Court, and it may subject the judges of legislative courts to removal by the President, 53 or it may reduce their salaries during their terms. 54 Similarly, it follows that Congress can vest in legislative courts nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus, in Gordon v. United States, 55 there was no objection to the power of the Secretary of the Treasury and Congress to revise or suspend the early judgments of the Court of Claims. Likewise, in United States v. Ferreira, 56 the Court sustained the act conferring powers on the Florida territorial court to examine claims rising under the Spanish treaty and to report its decisions and the evidence on which they were based to the Secretary of the Treasury for subsequent action. ''A power of this description,'' it was said, ''may constitutionally be conferred on a Secretary as well as on a commissioner. But [it] is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.'' 57  

Review of Legislative Courts by Supreme Court .--Chief Justice Taney's view, that would have been expressed in Gordon, 58 that the judgments of legislative courts could never be reviewed by the Supreme Court, was tacitly rejected in DeGroot v. United States, 59 in which the Court took jurisdiction from a final judgment of the Court of Claims. Since the decision in this case, the authority of the Court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts but rather upon the nature of the proceeding before the lower court and the finality of its judgment. The Supreme Court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such a body. 60 But in proceedings before a legislative court which are judicial in nature, admit of a final judgment, and involve the per formance of judicial functions and therefore the exercise of judicial power, the Court may be vested with appellate jurisdiction. 61  

The ''Public Rights'' Distinction .--A major delineation of the distinction between Article I courts and Article III courts was attempted in Murray's Lessee v. Hoboken Land & Improvement Co. 62 In this case was challenged a summary procedure, without benefit of the courts, for the collection by the United States of moneys claimed to be due from one of its customs collectors. It was objected that the assessment and collection was a judicial act carried out by nonjudicial officers and thus invalid under Article III. Accepting that the acts complained of were judicial, the Court nonetheless sustained the act by distinguishing between any act, ''which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty,'' which, in other words, is inherently judicial, and other acts which Congress may vest in courts or in other agencies. ''[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.'' 63 The distinction was between those acts which historically had been determined by courts and those which historically had been resolved by executive or legislative acts and comprehended those matters that arose between the government and others. Thus, Article I courts ''may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control.'' 64  

Among the matters susceptible of judicial determination, but not requiring it, are claims against the United States, 65 the disposal of public lands and claims arising therefrom, 66 questions concerning membership in the Indian tribes, 67 and questions arising out of the administration of the customs and internal revenue laws. 68 Other courts similar to territorial courts, such as consular courts and military courts martial, may be justified on like grounds. 69  

The ''public rights'' distinction appears today to be a description without a significant distinction. Thus, in Crowell v. Benson, 70 the Court approved an administrative scheme for determination, subject to judicial review, of maritime employee compensation claims, although it acknowledged that the case involved ''one of private right, that is, of the liability of one individual to another under the law as defined.'' 71 This scheme was permissible, the Court said, because in cases arising out of congressional statutes, an administrative tribunal could make findings of fact and render an initial decision of legal and constitutional questions, as long as there is adequate review in a constitutional court. 72 The ''essential attributes'' of decision must remain in an Article III court, but so long as it does, Congress may utilize administrative decisionmakers in those private rights cases that arise in the context of a comprehensive federal statutory scheme. 73 That the ''public rights'' distinction marked a dividing line between those matters that could be assigned to legislative courts and to administrative agencies and those matters ''of private right'' that could not be was reasserted in Marathon, but there was much the Court plurality did not explain. 74  

The Court continued to waver with respect to the importance to decision-making of the public rights/private rights distinction. In two cases following Marathon, it rejected the distinction as ''a bright line test,'' and instead focused on ''substance''--i.e., on the extent to which the particular grant of jurisdiction to an Article I court threatened judicial integrity and separation of powers principles. 75 Nonetheless, the Court indicated that the distinction may be an appropriate starting point for analysis. Thus, the fact that private rights traditionally at the core of Article III jurisdiction are at stake leads the Court to ''searching'' inquiry as to whether Congress is encroaching inordinately on judicial functions, while the concern is not so great where ''public'' rights are involved. 76  

However, in a subsequent case, the distinction was pronounced determinative not only of the issue whether a matter could be referred to a non-Article III tribunal but whether Congress could dispense with civil jury trials. 77 In so doing, however, the Court vitiated much of the core content of ''private'' rights as a concept and left resolution of the central issue to a balancing test. That is, ''public'' rights are, strictly speaking, those in which the cause of action inheres in or lies against the Federal Government in its sovereign capacity, the understanding since Murray's Lessee. However, to accommodate Crowell v. Benson, Atlas Roofing, and similar cases, seemingly private causes of action between private parties will also be deemed ''public'' rights, when Congress, acting for a valid legislative purpose pursuant to its Article I powers, fashions a cause of action that is analogous to a common-law claim and so closely integrates it into a public regulatory scheme that it becomes a matter appropriate for agency resolution with limited involvement by the Article III judiciary. 78 Nonetheless, despite its fixing by Congress as a ''core proceeding'' suitable for an Article I bankruptcy court adjudication, the Court held the particular cause of ac tion at issue was a private issue as to which the parties were entitled to a civil jury trial (and necessarily which Congress could not commit to an Article I tribunal, save perhaps through the consent of the parties). 79  

Constitutional Status of the Court of Claims and the Courts of Customs and Patent Appeals .--Though the Supreme Court for a long while accepted the Court of Claims as an Article III court, 80 it later ruled that court to be an Article I court and its judges without constitutional protection of tenure and salary. 81 Then, in the 1950s, Congress statutorily declared that the Court of Claims, the Customs Court, and the Court of Customs and Patent Appeals were Article III courts, 82 a questionable act under the standards the Court had utilized to determine whether courts were legislative or constitutional. 83 But in Glidden Co. v. Zdanok, 84 five of seven participating Justices united to find that indeed the Court of Claims and the Court of Customs and Patent Appeals, at least, were constitutional courts and their judges eligible to participate in judicial business in other constitutional courts. Three Justices would have overruled Bakelite and Williams and would have held that the courts in question were constitutional courts. 85 Whether a court is an Article III tribunal depends largely upon whether legislation establishing it is in harmony with the limitations of that Article, specifically, ''whether . . . its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite.'' When a court is created ''to carry into effect [federal] powers . . . over subject matter . . . and not over localities,'' a presumption arises that the status of such a tribunal is constitutional rather than legislative. 86 The other four Justices expressly declared that Bakelite and Williams should not be overruled, 87 but two of them thought the two courts had attained constitutional status by virtue of the clear manifestation of congressional intent expressed in the legislation. 88 Two Justices maintained that both courts remained legislative tribunals. 89 While the result is clear, no standard for pronouncing a court legislative rather than constitutional has obtained the adherence of a majority of the Court. 90  

Status of Courts of the District of Columbia .--Through a long course of decisions, the courts of the District of Columbia were regarded as legislative courts upon which Congress could impose nonjudicial functions. In Butterworth v. United States ex rel. Hoe, 91 the Court sustained an act of Congress which conferred revisory powers upon the Supreme Court of the District in patent appeals and made its decisions binding only upon the Commissioner of Patents. Similarly, the Court later sustained the authority of Congress to vest revisory powers in the same court over rates fixed by a public utilities commission. 92 Not long after this, the same rule was applied to the revisory powers of the District Supreme Court over orders of the Federal Radio Commission. 93 These rulings were based on the assumption, express or implied, that the courts of the District were legislative courts, created by Congress in pursuance of its plenary power to govern the District of Columbia. In dictum in Ex parte Bakelite Corp., 94 while reviewing the history and ana lyzing the nature of the legislative courts, the Court stated that the courts of the District were legislative courts.

In 1933, nevertheless, the Court, abandoning all previous dicta on the subject, found the courts of the District of Columbia to be constitutional courts exercising judicial power of the United States, 95 with the result that it assumed the task of reconciling the performance of nonjudicial functions by such courts with the rule that constitutional courts can exercise only the judicial power of the United States. This task was accomplished by the argument that in establishing courts for the District, Congress is performing dual functions in pursuance of two distinct powers, the power to constitute tribunals inferior to the Supreme Court, and its plenary and exclusive power to legislate for the District of Columbia. However, Article III, Sec. 1, limits this latter power with respect to tenure and compensation, but not with regard to vesting legislative and administrative powers in such courts. Subject to the guarantees of personal liberty in the Constitution, ''Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a State legislature has in conferring jurisdiction on its courts.'' 96  

In 1970, Congress formally recognized two sets of courts in the District, federal courts, district courts and a Court of Appeals for the District of Columbia, created pursuant to Article III, and courts equivalent to state and territorial courts, created pursuant to Article I. 97 Congress' action was sustained in Palmore v. United States. 98 When legislating for the District, the Court held, Congress has the power of a local legislature and may, pursuant to Article I, Sec. 8, cl. 17, vest jurisdiction to hear matters of local law and local concerns in courts not having Article III characteristics. The defendant's claim that he was denied his constitutional right to be tried before an Article III judge was denied on the basis that it was not absolutely necessary that every proceeding in which a charge, claim, or defense based on an act of Congress or a law made under its authority need be conducted in an Article III court. State courts, after all, could hear cases involving federal law as could territorial and military courts. ''[T]he requirements of Article III, which are applicable where laws of national applicability and affairs of na tional concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment.'' 99  

Bankruptcy Courts .--After extended and lengthy debate, Congress in 1978 revised the bankruptcy act and created as an ''adjunct'' of the district courts a bankruptcy court composed of judges, vested with practically all the judicial power of the United States, serving for 14 year terms, subject to removal for cause by the judicial councils of the circuits, and with salaries subject to statutory change. 100 The bankruptcy courts were given jurisdiction over all civil proceedings arising under the bankruptcy code or arising in or related to bankruptcy cases, with review in Article III courts under a clearly erroneous standard. In a case in which a claim was made against a company for breaches of contract and warranty, purely state law claims, the Court held unconstitutional the conferral upon judges not having the Article III security of tenure and compensation of jurisdiction to hear state law claims of traditional common law actions of the kind existing at the time of the drafting of the Constitution. 101 While the holding was extremely narrow, a plurality of the Court sought to rationalize and limit the Court's jurisprudence of Article I courts. According to the plurality, as a fundamental principle of separation of powers, the judicial power of the United States must be exercised by courts having the attributes prescribed in Article III. Congress may not evade the constitutional order by allocating this judicial power to courts whose judges lack security of tenure and compensation. Only in three narrowly circumscribed instances may judicial power be distributed outside the Article III framework: in territories and the District of Columbia, that is, geographical areas in which no State operated as sovereign and Congress exercised the general powers of government; courts martial, that is, the establishment of courts under a constitutional grant of power historically understood as giving the political branches extraordinary control over the precise subject matter; and the adjudication of ''public rights,'' that is, the litigation of certain matters that historically were reserved to the political branches of government and that were between the government and the individual. 102 In bankruptcy legislation and litigation not involving any of these exceptions, the plurality would have held, the judicial power to process bankruptcy cases could not be assigned to the tribunals created by the act. 103  

The dissent argued that, while on its face Article III provided for exclusivity in assigning judicial power to Article III entities, the history since Canter belied that simplicity. Rather, the precedents clearly indicated that there is no difference in principle between the work that Congress may assign to an Article I court and that which must be given to an Article III court. Despite this, the dissent contended that Congress did not possess plenary discretion in choosing between the two systems; rather, in evaluating whether jurisdiction was properly reposed in an Article I court, the Supreme Court must balance the values of Article III against both the strength of the interest Congress sought to further by its Article I investiture and the extent to which Article III values were undermined by the congressional action. This balancing would afford the Court, the dissent believed, the power to prevent Congress, were it moved to do so, from transferring jurisdiction in order to emasculate the constitutional courts of the United States. 104  

Again, no majority could be marshaled behind a principled discussion of the reasons for and the limitation upon the creation of legislative courts, not that a majority opinion, or even a unanimous one, would necessarily presage the settling of the law. 105 But the breadth of the various opinions left unclear not only the degree of discretion left in Congress to restructure the bankruptcy courts, but placed in issue the constitutionality of other legislative efforts to establish adjudicative systems outside a scheme involving the creation of life-tenured judges. 106  

Congress responded to Marathon by enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984. 107 Bankruptcy courts were maintained as Article I entities, and overall their powers as courts were not notably diminished. However, Congress did establish a division between ''core proceedings,'' which bankruptcy courts could hear and determine, subject to lenient review, and other proceedings, which, though the bankruptcy courts could initially hear and decide, any party could have de novo review in the district court, unless the parties consented to bankruptcy-court jurisdiction in the same manner as core proceedings. A safety valve was included, permitting the district court to withdraw any proceeding from the bankruptcy court on cause shown. 108 Notice that in Granfinanciera, S.A. v. Nordberg, 109 the Court found that a cause of action founded on state law, though denominated a core proceeding, was a private right.

Agency Adjudication .--The Court in two decisions following Marathon involving legislative courts clearly suggested that the majority was now closer to the balancing approach of the Marathon dissenters than to the position of the Marathon plurality that Congress may confer judicial power on legislative courts in only very limited circumstances. Subsequently, however, Granfinanciera, S.A. v. Nordberg, 110 a reversion to the fundamentality of Marathon, with an opinion by the same author, Justice Brennan, cast some doubt on this proposition. In Thomas v. Union Carbide Agric. Products Co., 111 the Court upheld a provision of the pesticide law requiring binding arbitration, with limited judicial review, of compensation due one registrant by another for mandatory sharing of registration information, the right arising from federal statutory law. And in CFTC v. Schor, 112 the Court upheld conferral on the agency of authority, in a reparations adjudication under the Act, also to adjudicate ''counterclaims'' arising out of the same transaction, including those arising under state common law. Neither the fact that the pesticide case involved a dispute between two pri vate parties nor the fact that the CFTC was empowered to decide claims traditionally adjudicated under state law proved decisive to the Court's analysis.

In rejecting a ''formalistic'' approach and analyzing the ''substance'' of the provision at issue in Union Carbide, Justice O'Connor's opinion for the Court pointed to several considerations. 113 The right to compensation was not a purely private right, but ''bears many of the characteristics of a 'public' right,'' since Congress was ''authoriz[ing] an agency administering a complex regulatory scheme to allocate costs and benefits among voluntary participants in the program.'' 114 Also important was not ''unduly constrict[ing] Congress in its ability to take needed and innovative action pursuant to its Article I powers;'' 115 arbitration was ''a pragmatic solution to [a] difficult problem.'' The limited nature of judicial review was seen as a plus in the sense that ''no unwilling defendant is subjected to judicial enforcement power;'' on the other hand, availability of limited judicial review of the arbitrator's findings and determination for fraud, misconduct, or misrepresentation, and for due process violations, preserved the '''appropriate exercise of the judicial function.''' 116 Thus, the Court concluded, Congress in exercise of Article I powers ''may create a seemingly 'private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.'' 117  

In Schor, the Court described Art. III, Sec. 1, as serving a dual purpose: to protect the role of an independent judiciary and to safeguard the right of litigants to have claims decided by judges free from potential domination by the other branches of government. A litigant's Article III right is not absolute, the Court determined, but may be waived. This the litigant had done by submitting to the administrative law judge's jurisdiction rather than independently seeking relief as he was entitled to and then objecting only after adverse rulings on the merits. But the institutional integrity claim, not being personal, could not be waived and the Court reached the merits. The threat to institutional independence was ''weighed'' by reference to ''a number of factors.'' The conferral on the CFTC of pendent jurisdiction over common law counterclaims was seen as more narrowly confined than was the grant to bankruptcy courts at issue in Marathon, and as more closely resembling the ''model'' approved in Crowell v. Benson. The CFTC's jurisdiction, unlike that of bankruptcy courts, was said to be confined to ''a particularized area of the law;'' the agency's orders were enforceable only by order of a district court, 118 and reviewable under a less deferential standard, with legal rulings being subject to de novo review; and the agency was not empowered, as had been the bankruptcy courts, to exercise ''all ordinary powers of district courts.''

Granfinanciera followed analysis different from that in Schor, although it preserved Union Carbide through its concept of ''public rights.'' State law and other legal claims founded on private rights could not be remitted to non-Article III tribunals for adjudication unless Congress in creating an integrated public regulatory scheme has so taken up the right as to transform it. It may not simply relabel a private right and place it into the regulatory scheme. The Court is hazy with respect to whether the right must be itself a creature of federal statutory action. The general descriptive language suggests that, but in its determination whether the right at issue in the case, the recovery of preferential or fraudulent transfers in the context of a bankruptcy proceeding, the Court seemingly goes beyond this point. Though a statutory interest, the actions were identical to state-law contract claims brought by a bankrupt corporation to augment the estate. 119 Schor was distinguished solely on the waiver part of the decision, relating to the individual interest, without considering the part of the opinion deciding the institutional interest on the merits and utilizing a balancing test. 120  

Thus, while the Court has made some progress in reconciling its growing line of disparate cases, doctrinal harmony has not yet been achieved.

Noncourt Entities in the Judicial Branch

Passing on the constitutionality of the establishment of the Sentencing Commission as an ''independent'' body in the judicial branch, the Court acknowledged that the Commission is not a court and does not exercise judicial power. Rather, its function is to promulgate binding sentencing guidelines for federal courts. It acts, therefore, legislatively, and its membership of seven is composed of three judges and three nonjudges. But the standard of constitu tionality, the Court held, is whether the entity exercises powers that are more appropriately performed by another branch or that undermine the integrity of the judiciary. Because the imposition of sentences is a function traditionally exercised within congressionally prescribed limits by federal judges, the Court found the functions of the Commission could be located in the judicial branch. Nor did performance of its functions contribute to a weakening of the judiciary, or an aggrandizement of power either, in any meaningful way, the Court observed. 121  


[Footnote 1] M. Farrand, The Framing of the Constitution of the United States (New Haven: 1913), 79.

[Footnote 2] The most complete account of the Convention's consideration of the judiciary is J. Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States, Vol. 1 (New York: 1971), ch. 5.

[Footnote 3] 1 M. Farrand, op. cit., n. 1, 21-22. That this version might not possibly be an accurate copy, see 3 id., 593-594.

[Footnote 4] 1 id., 95, 104.

[Footnote 5] Id., 95, 105. The words ''One or more'' were deleted the following day without recorded debate. Id., 116, 119.

[Footnote 6] Id., 124-125.

[Footnote 7] Madison's notes use the word ''institute'' in place of ''appoint'', id., 125, but the latter appears in the Convention Journal, id., 118, and in Yates' notes, id., 127, and when the Convention took up the draft reported by the Committee of the Whole ''appoint'' is used even in Madison's notes. 2 id., 38, 45.

[Footnote 8] On offering their motion, Wilson and Madison ''observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them.'' 1 id., 125. The Committee on Detail provided for the vesting of judicial power in one Supreme Court ''and in such inferior Courts as shall, when necessary, from time to time, be constituted by the legislature of the United States.'' 2 id., 186. Its draft also authorized Congress ''[t]o constitute tribunals inferior to the Supreme Court.'' Id., 182. No debate is recorded when the Convention approved these two clauses, Id. 315, 422-423, 428-430. The Committee on Style left the clause empowering Congress to ''constitute'' inferior tribunals as was, but it deleted ''as shall, when necessary'' from the Judiciary article, so that the judicial power was vested ''in such inferior courts as Congress may from time to time''--and here deleted ''constitute'' and substituted the more forceful--''ordain and establish.'' Id., 600.

[Footnote 9] The provision was in the Virginia Plan and was approved throughout, 1 id., 21.

[Footnote 10] Id, 121; 2 id., 44-45, 429-430.

[Footnote 11] Article I, Sec. 3.

[Footnote 12] Act of September 24, 1789, 1 Stat. 73. The authoritative works on the Act and its working and amendments are F. Frankfurter & J. Landis, The Business of the Supreme Court (New York: 1928); Warren, New Light on the History of the Federal Judicial Act of 1789, 37 Harv. L. Rev. 49 (1923); see also J. Goebel, op. cit., n. 2, ch. 11.

[Footnote 13] Act of September 24, 1789, 1 Stat. 73, Sec. 1.

[Footnote 14] 12 Stat. 794, Sec. 1.

[Footnote 15] Act of July 23, 1866, 14 Stat. 209, Sec. 1.

[Footnote 16] Act of April 10, 1869, 16 Stat. 44.

[Footnote 17] Hearings before the Senate Judiciary Committee on S. 1392, Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3, 491. For earlier proposals to have the Court sit in divisions, see F. Frankfurter & J. Landis, op. cit., n. 12, 74-85.

[Footnote 18] 1 C. Warren, The Supreme Court in United States History (Boston: rev. ed. 1926), 222-224.

[Footnote 19] Act of September 24, 1789, 1 Stat. 73, Sec. Sec. 2-3.

[Footnote 20] Id., 74, Sec. Sec. 4-5

[Footnote 21] Cf. F. Frankfurter & J. Landis, op. cit., n. 12, chs. 1-3: J. Goebel. op. cit., n. 2, 554-560, 565-569. Upon receipt of a letter from President Washington soliciting suggestions regarding the judicial system, Writings of George Washington, J. Fitzpatrick ed., (Washington: 1943), 31, Chief Justice Jay prepared a letter for the approval of the other Justices, declining to comment on the policy questions but raising several issues of constitutionality, that the same man should not be appointed to two offices, that the offices were incompatible, and that the act invaded the prerogatives of the President and Senate. 2 G. McRee, Life and Correspondence of James Iredell (New York: 1858), 293- 296. The letter was apparently never forwarded to the President. Writings of Washington, op. cit., 31-32 n. 58. When the constitutional issue was raised in Stuart v. Laird, 5 U.S. (1 Cr.) 299, 309 (1803), it was passed over with the observation that the practice was too established to be questioned.

[Footnote 22] Act of March 3, 1891, 26 Stat. 826. The temporary relief came in the Act of February 13, 1801, 2 Stat. 89, which was repealed by the Act of March 8, 1802, 2 Stat. 132.

[Footnote 23] Act of February 13, 1801, 2 Stat. 89.

[Footnote 24] Act of March 8, 1802, 2 Stat. 132. F. Frankfurter & J. Landis, op. cit., n. 12, 25-32; 1 C. Warren, op. cit., n. 18, 185-215.

[Footnote 25] This was the theory of John Taylor of Caroline, upon whom the Jeffersonians in Congress relied. W. Carpenter, Judicial Tenure in the United States (New Haven: 1918), 63-64. The controversy is recounted fully in id., 58-78.

[Footnote 26]   5 U.S. (1 Cr.) 299 (1803).

[Footnote 27] The Court was created by the Act of June 18, 1910, 36 Stat. 539, and repealed by the Act of October 22, 1913, 38 Stat. 208, 219. See F. Frankfurter & J. Landis, op. cit., n. 12, 153-174; W. Carpenter, op. cit., n. 25, 78-94.

[Footnote 28] United States v. Will, 449 U.S. 200, 217 -218 (1980). Hamilton, writing in The Federalist, No. 79 (J. Cooke ed., 1961), 531, emphasized that ''[i]n the general course of human nature, a power over a man's subsistence amounts to a power over his will.''

[Footnote 29] United States v. Will, 449 U.S. 200, 224 -230 (1980). In one year, the increase took effect of October 1, while the President signed the bill reducing the amount during the day of October 1. The Court held the increase had gone into effect by the time the reduction was signed. Will is also authority for the proposition that a general, nondiscriminatory reduction, affecting judges but not aimed solely at them, is covered by the clause. Id., 226.

[Footnote 30] O'Donoghue v. United States, 289 U.S. 516 (1933).

[Footnote 31] Williams v. United States, 289 U.S. 553 (1933). But see Glidden Company v. Zdanok, 370 U.S. 530 (1962).

[Footnote 32]   253 U.S. 245 (1920).

[Footnote 33]   268 U.S. 501 (1925).

[Footnote 34]   307 U.S. 277 (1939).

[Footnote 35] Id., 278-282.

[Footnote 36] Id., 282.

[Footnote 37] 36 Stat. 539.

[Footnote 38] 56 Stat. 23, Sec. Sec. 31-33.

[Footnote 39] In Lockerty v. Phillips, 319 U.S. 182 (1943), the limitations on the use of injunctions, except the prohibition against interlocutory decrees, was unanimously sustained.

[Footnote 40] By the Federal Courts Improvement Act of 1982, P. L. 97-164, 96 Stat. 37, 28 U.S.C. Sec. 1295. Among other things, this Court assumed the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals.

[Footnote 41] Act of Oct. 10, 1980, 94 Stat. 1727.

[Footnote 42] 28 U.S.C. Sec. 1407.

[Footnote 43] P. L. 95-511,92 Stat. 1788, 50 U.S.C. Sec. 1803.

[Footnote 44] Ethics in Government Act, Title VI, P. L. 95-521, 92 Stat. 1867, as amended, 28 U.S.C. Sec. Sec. 591-599. The court is a ''Special Division'' of the United States Court of Appeals for the District of Columbia; composed of three regular federal judges, only one of whom may be from the D. C. Circuit, who are designated by the Chief Justice. 28 U.S. C. Sec. 49. The constitutionality of the Special Division was upheld in Morrison v. Olson, 487 U.S. 654, 670 -685 (1988).

[Footnote 45] In Freytag v. CIR, 501 U.S. 868 (1991), a controverted decision held Article I courts to be ''Courts of Law'' for purposes of the appointments clause. Art. II, Sec. 2, cl. 2. See id., 888-892 (majority opinion), and 901-914 (Justice Scalia dissenting).

[Footnote 46]   26 U.S. (1 Pet.) 511 (1828).

[Footnote 47] Id., 546.

[Footnote 48] In Glidden Co. v. Zdanok, 370 U.S. 530, 544 -545 (1962), Justice Harlan asserted that Chief Justice Marshall in the Canter case ''did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. . . . All the Chief Justice meant . . . is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article. . . .''

[Footnote 49] Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 (1982) (Justice White dissenting).

[Footnote 50] That the Supreme Court could review the judgments of territorial courts was established in Durousseau v. United States, 10 U.S. (6 Cr.) 307 (1810). See also Benner v. Porter, 50 U.S. (9 How.) 235, 243 (1850); Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434 (1872); Balzac v. Porto Rico, 258 U.S. 298, 312 -313 (1922).

[Footnote 51] Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90 , 91 (1982) (Justice Rehnquist concurring). The ''darkling plain'' language is his attribution to Justice White's historical summary.

[Footnote 52] In addition to the local courts of the District of Columbia, the bankruptcy courts, and the U. S. Court of Federal Claims, considered infra, these include the United States Tax Court, formerly an independent agency in the Treasury Department, but by the Tax Reform Act of 1969, Sec. 951, 83 Stat. 730, 26 U.S.C. Sec. 7441, made an Article I court of record, the Court of Veterans Appeals, Act of Nov. 18, 1988, 102 Stat. 4105, 38 U.S.C. Sec. 4051, and the courts of the territories of the United States. Magistrate judges are adjuncts of the District Courts, see infra, n. 105, and perform a large number of functions, usually requiring the consent of the litigants. See Gomez v. United States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 923 (1991). The U. S. Court of Military Appeals, strictly speaking, is not part of the judiciary but is a military tribunal, 10 U.S.C. Sec. 867, although Congress designated it an Article I tribunal and has recently given the Supreme Court certiorari jurisdiction over its decisions.

[Footnote 53] McAllister v. United States, 141 U.S. 174 (1891).

[Footnote 54] United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289 U.S. 553 (1933).

[Footnote 55]   69 U.S. (2 Wall.) 561 (1864).

[Footnote 56]   54 U.S. (13 How.) 40 (1852).

[Footnote 57] Id., 48.

[Footnote 58] The opinion in Gordon v. United States, 69 U.S. (2 Wall.) 561 (1864), had originally been prepared by Chief Justice Taney, but following his death and reargument of the case the opinion cited was issued. The Court later directed the publishing of Taney's original opinion at 117 U.S. 697 . See also United States v. Jones, 119 U.S. 477, 478 (1886), in which the Court noted that the official report of Chief Justice Chase's Gordon opinion and the Court's own record showed differences and quoted the record.

[Footnote 59]   72 U.S. (5 Wall.) 419 (1867). See also United States v. Jones, 119 U.S. 477 (1886).

[Footnote 60] E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Comm. v. General Elec. Co., 281 U.S. 464 (1930); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). See Glidden Co. v. Zdanok, 370 U.S. 530, 576 , 577-579 (1962).

[Footnote 61] Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).

[Footnote 62]   59 U.S. (18 How.) 272 (1856).

[Footnote 63] Id., 284.

[Footnote 64] Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929).

[Footnote 65] Gordon v. United States, 117 U.S. 697 (1864); McElrath v. United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 553 (1933). On the status of the then-existing Court of Claims, see Glidden Co. v. Zdanok, 370 U.S. 530 (1962).

[Footnote 66] United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims).

[Footnote 67] Wallace v. Adams. 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court).

[Footnote 68] Old Colony Trust Co. v. CIR, 279 U.S. 716 (1929); Ex Parte Bakelite Corp., 279 U.S. 438 (1929).

[Footnote 69] See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military courts may, on the other hand, be a separate entity of the military having no connection to Article III. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857).

[Footnote 70]   285 U.S. 22 (1932).

[Footnote 71] Id. 51. On the constitutional problems of assignment to an administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937).

[Footnote 72] Id., 51-65.

[Footnote 73] Id., 50, 51, 58-63. Thus, Article III concerns were satisfied by a review of the agency fact finding upon the administrative record. Id., 63-65. The plurality opinion denied the validity of this approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n. 39 (1982), although Justice white in dissent accepted it. Id., 115. The plurality, rather, rationalized Crowell and subsequent cases on an analysis seeking to ascertain whether agencies or Article I tribunals were ''adjuncts'' of Article III courts, that is, whether Article III courts were sufficiently in charge to protect constitutional values. Id., 76-87.

[Footnote 74] Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67 -70 (1982) (plurality opinion). Thus, Justice Brennan states that at a minimum a matter of public right must arise '''between the government and others''' but that the presence of the United States as a proper party to the proceeding is a necessary but not sufficient means to distinguish ''private rights.'' Id., 69 & n. 23. Crowell v. Benson, however, remained an embarrassing presence.

[Footnote 75] Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985); CFTC v. Schor, 478 U.S. 833 (1986). The cases also abandoned the principle that the Federal Government must be a party for the case to fall into the ''public rights'' category. Thomas, supra, 586; and see id., 596-599 (Justice Brennan concurring).

[Footnote 76] ''In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that 'could be conclusively determined by the Executive and Legislative Branches,' the danger of encroaching on the judicial powers is reduced.'' Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline, supra, 458 U.S., 68 (plurality opinion)).

[Footnote 77] Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51 -55 (1989). A seventh Amendment jury-trial case, the decision is critical to the Article III issue as well, because, as the Court makes clear what was implicit before, whether Congress can submit a legal issue to an Article I tribunal and whether it can dispense with a civil jury on that legal issue must be answered by the same analysis. Id., 52-53.

[Footnote 78] Id., 52-54. The Court reiterated that the Government need not be a party as a prerequisite to a matter being of ''public right.'' Id., 54. Concurring, Justice Scalia argued that public rights historically were and should remain only those matters to which the Federal Government is a party. Id, 65.

[Footnote 79] Id., 55-64. The Court reserved the question whether, a jury trial being required, a non-Article III bankruptcy judge could oversee such a jury trial. Id., 64. That question remains unresolved, both as a matter, first, of whether there is statutory authorization for bankruptcy judges to conduct jury trials, and, second, if there is, whether they may constitutionally do so. E.g., In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir. 1990), cert. granted, 497 U.S. 1023 , vacated and remanded for consideration of a jurisdictional issue, 498 U.S. 964 (1990), reinstated, 924 F.2d 36 (2d Cir.), cert. den., 500 U.S. 928 (1991); In re Grabill Corp., 967 F.2d 1152 (7th Cir. 1991), pet. for reh. en banc den., 976 F.2d 1126 (7th Cir. 1992).

[Footnote 80] De Groot v. United States, 72 U.S. (5 Wall.) 419 (1866); United States v. Union Pacific Co., 98 U.S. 569, 603 (1878); Miles v. Graham, 268 U.S. 501 (1925).

[Footnote 81] Williams v. United States, 289 U.S. 553 (1933); cf. Ex Parte Bakelite Corp., 279 U.S. 438, 450 -455 (1929).

[Footnote 82] 67 Stat. 226, Sec. 1, 28 U.S.C. Sec. 171 (Court of Claims); 70 Stat. 532. Sec. 1, 28 U.S.C. Sec. 251 (Customs Court); 72 Stat. 848, Sec. 1, 28 U.S.C. Sec. 211 (Court of Customs and Patent Appeals).

[Footnote 83] In Ex parte Bakelite Corp., 279 U.S. 438 . 459 (1929), Justice Van Devanter refused to give any weight to the fact that Congress had bestowed life tenure on the judges of the Court of Customs Appeals because that line of thought ''mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred.''

[Footnote 84]   370 U.S. 530 (1962).

[Footnote 85] Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices Harlan, Brennan, and Stewart).

[Footnote 86] Id., 548, 552.

[Footnote 87] Id., 585 (Justice Clark and Chief Justice Warren concurring); 589 (Justices Douglas and Black dissenting).

[Footnote 88] Id., 585 (Justice Clark and Chief Justice Warren).

[Footnote 89] Id., 589 (Justices Douglas and Black). The concurrence thought that the rationale of Bakelite and Williams was based on a significant advisory and reference business of the two courts, which the two Justices now thought insignificant, but what there was of it they thought nonjudicial and the courts should not entertain it. Justice Harlan left that question open. Id., 583.

[Footnote 90] Aside from doctrinal matters, in 1982, Congress created the United States Court of Appeals for the Federal Circuit, giving it, inter alia, the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals. 96 Stat. 25, title 1, 28 U.S.C. Sec. 41. At the same time Congress, created the United States Claims Court, now the United States Court of Federal Claims, as an Article I tribunal, with the trial jurisdiction of the old Court of Claims. 96 Stat. 26, as amended, Sec. 902(a)(1), 106 Stat. 4516, 28 U.S.C. Sec. Sec. 171-180.

[Footnote 91]   112 U.S. 50 (1884).

[Footnote 92] Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).

[Footnote 93] Federal Radio Comm. v. General Elec. Co., 281 U.S. 464 (1930).

[Footnote 94]   279 U.S. 438, 450 -455 (1929).

[Footnote 95] O'Donoghue v. United States, 289 U.S. 516 (1933).

[Footnote 96] Id., 535-546. Chief Justice Hughes in dissent argued that Congress' power over the District was complete in itself and the power to create courts there did not derive at all from Article III. Id., 551. See the discussion of this point of O'Donoghue in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Cf. Hobson v. Hansen, 265 F. Supp. 902 (D.C.D.C. 1967) (three-judge court).

[Footnote 97] P.L. 91-358, 84 Stat. 475, D.C. Code Sec. 11-101.

[Footnote 98]   411 U.S. 389 (1973)

[Footnote 99] Id., 407-408. See also Pernell v. Southall Realty Co., 416 U.S. 363, 365 -365 (1974); Swain v. Pressley, 430 U.S. 372 (1977); Key v. Doyle, 434 U.S. 59 (1978). Under Swain, provision for hearing of motions for postjudgment relief by convicted persons in the District, the present equivalent of habeas for federal convicts, is placed in Article I courts. That there are limits to Congress' discretion is asserted in dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201 -202, 204 (1977).

[Footnote 100] Bankruptcy Act of 1978, P.L. 95-598, 92 Stat. 2549, codified in titles 11, 28. The bankruptcy courts were made ''adjuncts'' of the district courts by Sec. 201(a), 28 U.S.C. Sec. 151(a). For citation to the debate with respect to Article III versus Article I status for these courts, see Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 61 n. 12 (1982) (plurality opinion).

[Footnote 101] The statement of the holding is that of the two concurring Justices, id., 89 (Justices Rehnquist and O'Connor), with which the plurality agreed ''at the least,'' while desiring to go further. Id., 87 n. 40.

[Footnote 102] Id., 63-76 (Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens).

[Footnote 103] The plurality also rejected an alternative basis, a contention that as ''adjuncts'' of the district courts, the bankruptcy courts were like United States magistrates or like those agencies approved in Crowell v. Benson, 285 U.S. 22 (1932), to which could be assigned factfinding functions subject to review in Article III courts, the fount of the administrative agency system. Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76 -86 (1982). According to the plurality, the act vested too much judicial power in the bankruptcy courts to treat them like agencies, and it limited the review of Article III courts too much.

[Footnote 104] Id., 92, 105-113, 113-116 (Justice White, joined by Chief Justice Burger and Justice Powell).

[Footnote 105] Ex parte Bakelite Corp., 279 U.S. 438 (1929), was, after all, a unanimous opinion and did not long survive.

[Footnote 106] In particular, the Federal Magistrates Act of 1968, under which judges may refer certain pretrial motions and the trial of certain matters to persons appointed to a specific term, was threatened. P.L. 90-578, 82 Stat. 1108, as amended, 28 U.S.C. Sec. Sec. 631-639. See United States v. Raddatz, 447 U.S. 667 (1980); Mathews v. Weber, 423 U.S. 261 (1976).

[Footnote 107] P. L. 98-353, 98 Stat. 333, judiciary provisions at 28 U.S.C. Sec. 151 et seq.

[Footnote 108] See 28 U.S.C. Sec. 157.

[Footnote 109]   492 U.S. 33 (1989).

[Footnote 110] Id.

[Footnote 111]   473 U.S. 568 (1985).

[Footnote 112]   478 U.S. 833 (1986).

[Footnote 113] Contrast the Court's approach to Article III separation of powers issues with the more rigid approach enunciated in INS v. Chadha and Bowsher v. Synar, involving congressional incursions on executive power.

[Footnote 114] Id., 473 U.S., 589.

[Footnote 115] CFTC v. Schor, supra, 478 U.S., 851 (summarizing the Thomas rule).

[Footnote 116] Thomas, supra, 473 U.S., 591, 592(quoting Crowell v. Benson, 285 U.S. 22, 54 (1932)).

[Footnote 117] 473 U.S., 594.

[Footnote 118] Cf. Union Carbide, supra, 473 U.S., 591 (fact that ''FIFRA arbitration scheme incorporates its own system of internal sanctions and relies only tangentially, if at all, on the Judicial Branch for enforcement'' cited as lessening danger of encroachment on ''Article III judicial powers'').

[Footnote 119] Granfinanciera, supra, 492 U.S., 51-55, 55-60.

[Footnote 120] Id., 59 n. 14.

[Footnote 121] Mistretta v. United States, 488 U.S. 361, 384 -97 (1989). Clearly, some of the powers vested in the Special Division of the United States Court of Appeals for the District of Columbia Circuit under the Ethics in Government Act in respect to the independent counsel were administrative, but because the major nonjudicial power, the appointment of the independent counsel, was specifically authorized in the appointments clause, the additional powers were miscellaneous and could be lodged there by Congress. Implicit in the Court's analysis was the principle that a line exists that Congress could not cross over. Morrison v. Olson, 487 U.S. 654, 677 -685 (1988).

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