Federal Courts

Some Implications for Executive Adjudication

Adjudication Outside Article III (part four)

|The Volokh Conspiracy |

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.

NEXT: Best Substitute for Yeast in Bread Machines?

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  1. Professor, you note in your article that “the Fifth Amendment’s grand jury requirement expressly exempts ‘cases arising in the land or naval forces.’”

    So what’s a “case”? 12 bottles?

  2. Two thoughts — first, certiorari and habeas both applied to strange foreign proceedings within the kingdom, forestry, admiralty, manorial & leet, and such — the point was that King’s Bench wanted to look at something, whether the case (cert) or the reason for holding the person (habeas), so an appeal would lie regardless of the form of the action in the original court. Second, prior to 1864, the supreme court only took certified questions from the inferior federal courts, so the form of action below would be irrelevant.

    Top of the head, likely wrong. Cheers.

    Mr. Dove

  3. I generally think of the military as a special case.

    But you have a reasonable argument that if Article III courts are to review military judgments, there needs to be an Article III court prior to the Supreme Court, perhaps a special court of appeals, that reviews them first and counts as the Article III court of original jurisdiction, with the Supreme Court getting appellate jurisdiction from that.

  4. Regarding the Court of Federal Claims – if the life tenure requirements of Article III are met, then why doesn’t it count as an Article III court for purposes of determining whether the Constitution permits the Supreme Court to exercise appellate jurisdiction? What other specific requirement Article III imposes that all “courts” have to meet to be in the judicial branch for Article III purposes isn’t met here? Can Congress lower their salaries?

    1. Federal claims judges don’t have life tenure—they serve 15 year terms and can be removed without being impeached.

  5. “Because the CAAF is not actually a court in the constitutional sense, the Supreme Court should not be able to directly review its decisions. . . .”

    I don’t get this.

    A federal law created the CAAF – just like federal law creates the other inferior federal courts.

    So why can’t the Supreme Court hold appellate review of CAAF decisions just like does for the circuit courts?

    1. Professor Baude is arguing that the only courts that the Supreme Court has appellate jurisdiction over are Article III courts, and anything not decided by an Article III court has to go to an inferior Article III Court first before the Supreme Court can hear an appeal from it.

      This means that in his view, the various statutes providing a direct appeal to the Supreme Court from Article I courts are unconstitutional.

      1. He is arguing that anything decided by an Article I Court is Executive action and not judicial action at all. He argues that the Supreme Court can’t hear complaints about executive action directly except where the Constitution provides for original jurisdiction. Where the Constitution provides for appellate jurisdiction, any complaint about executive action has to go through an inferior Article III court before it can get to the Supreme Court.

        The logical corollary of this, under the Unitary Executive theory, is that the President ought to be able to order Article I court “judges” around – fire them at will, tell them how to rule in specific cases, etc. They are just Executive branch functionaries, not judges.

        1. So if they changed the law to say appeals to CAAF decisions will be heard by the DC circuit court, then all would be OK?

          1. I’m not Prof. Abuse, but I don’t see why not—we have judicial review of executive agency action in all sorts of other contexts.

            1. “Baude” was autocorrected to “abuse”.

    2. Federal courts need to be staffed by judges who have life tenure. The CAAF is staffed by “judges” who serve 15 year terms. Congress could certainly pass legislation that would create an inferior federal court that would review military cases, but they haven’t done so. And if they want to have a “real” federal court review military decisions, that review needs to start somewhere other than the Supreme Court (unless you think Marbury was wrongly decided).

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