The Volokh Conspiracy

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Supreme Court

A New Draft: "Adjudication Outside Article III"

A new draft article on so-called "non-Article III courts" with implications for the pending case of Dalmazzi v. United States.


The Supreme Court has 14 cases left to decide this term, one of which is Dalmazzi v. United States. I have posted about Dalmazzi before, but in a nutshell the case concerns both the legality of various appointments to the military appeals courts, and a tricky question of appellate jurisdiction: whether the Supreme Court can take appellate jurisdiction over a case from the Court of Appeals for the Armed Forces. The question is tricky because the Court of Appeals for the Armed Forces is a so-called "non-Article III court," called a court but not staffed by judges who meet Article III's requirements of life tenure and guaranteed compensation.

My pondering this and other questions that I teach in Federal Courts led me to write an article about these entities, and last week I finally posted a draft on SSRN. Here is the abstract:

Article III requires federal courts that exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress's ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III – state courts, most obviously, but also territorial courts, non-judicial adjudication of public rights, and military tribunals. The question is why.

This article attempts to provide an answer. By uniting Article III and the separation of powers principles underlying the Due Process Clause, this article argues that there are three (and only three) forms of adjudication permissible outside of Article III: (1) Those that exercise the "judicial power" of some other government; (2) those that do not authorize deprivations of life, liberty, or property; and (3) those that are for some reason an exception to normal due process requirements.

Territorial courts (like state courts) fall into the first category. Public rights adjudication falls into the second. Military tribunals fall into the third. Taken together, these categories fit into the text and structure of the Constitution and provide an explanation for our longest standing practices. They point towards limiting principles, and provide answers to many structural and procedural questions about non-Article III adjudication, including the question of appellate jurisdiction currently pending before the Supreme Court in Dalmazzi v. United States.

In the article, I argue that there should be no appellate jurisdiction over a military tribunal like the CAAF, because it is not a court in the constitutional sense. It is a part of the executive branch, unlike territorial courts which exercise the "judicial power" of their respective territories. But we will find out any day now — maybe even tomorrow — whether the Supreme Court agrees.