Some Implications for Executive Adjudication

Adjudication Outside Article III (part four)

Yesterday I explained that what administrative agencies, military tribunals, and legislative courts do is not exercise the judicial power. They may only exercise the executive power. It follows from this that they would not traditionally have been allowed to authorize deprivations of life, liberty, or property in most circumstances.

But something else follows from this too. Because these tribunals are part of the executive branch, they have to be supervised and reviewed in particular ways—the way executive officers are reviewed, not the way courts are reviewed. This would require changes to some of our current adjudication procedures.

One example is the Court of Appeals for the Armed Forces, an executive review board in charge of reviewing court-martial decisions. By statute, Congress allows the Supreme Court to review the CAAF's decisions. But the Constitution says that the Supreme Court's jurisdiction in such cases must be "appellate." Because the CAAF is not actually a court in the constitutional sense, the Supreme Court should not be able to directly review its decisions—just as it could not review the executive decisions of James Madison in Marbury v. Madison or of the military tribunal in Ex Parte Vallandigham. The Supreme Court recently held otherwise in Ortiz v. United States, but Justice Alito's dissent (and an argument made by Professor Aditya Bamzai as amicus curiae) were the better way to think about this.

Another example is the question of presidential supervision of the various legislative courts, such as the tax court and the court of federal claims. Members of the tax court are removable by the President, and this is controversial; members of the court of federal claims are not, and this is not controversial. My article suggests that this is backwards. Both of these so-called courts actually exercise executive power (and dispense money in ways that are not deprivations of life, liberty, or property). So they must be treated as part of the executive branch. That likely means being subject to some degree of presidential supervision and control. So they can likely keep doing what they're doing, but not quite in the same way.

Tomorrow I'll finish with some thoughts on bankruptcy and magistrate judges.