Federal Courts

Adjudication Outside Article III (part one)

Why there are no "exceptions" to Article III

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This has nothing to do with COVID-19, but maybe for some readers that will be a relief.

Last week I published an article, Adjudication Outside Article III, that attempts to solve a very longstanding constitutional puzzle. I posted about the paper here almost two years ago, but now that the final version is finally out I thought I'd spend a few posts laying out my solution to the puzzle.

The standard version of the puzzle is this: Article III of the Constitution says that the judicial power of the United States is vested in the federal courts, whose judges have tenure during good behavior and can't have their salaries reduced. It also describes the kinds of cases (such as those involving parties from different states, or arising under federal law) that those federal courts can hear.

But from the Founding to today, we have always allowed other bodies to adjudicate those same kinds of cases too. The most obvious example is state courts, which can and do hear cases involving diverse parties or federal questions, even though most state judges lack life tenure. But putting those aside, we have had non-Article-III territorial courts, administrative bodies like land claims courts, military tribunals, and so on.

So what explains these exceptions, and what other exceptions can Congress make, if it wants to keep things away from those pesky life-tenured judges? This is the longstanding puzzle, which has generally produced three attempted solutions. Some people say "basically none," and argue that even some of these exceptions (like territorial courts) are unconstitutional. Other people say "basically whatever Congress thinks is a good idea," and argue that there. And a few people have tried to come up with some kind of middle positions (for instance, that there must be Article III review), but in my view these have not been successful.

My article proposes a different way of thinking about the problem. It argues that it is a mistake to focus on the act of adjudication itself; adversary presentation about the application of law to fact is simply a procedure, and not a procedure uniquely limited to Article III courts. Instead, the constitutional question is one of government power. What kind of power has the tribunal been vested with, and what is it trying to do with that power?

In particular, some tribunals exercise judicial power. The federal courts are an example, but they are not the only example. State courts and territorial courts are also examples, and I can explain why these are not exceptions to the text of Article III.

Some tribunals exercise executive power. They have nothing to do with Article III. But because of the principles reflected by the due process clause, they cannot authorize the deprivation of life, liberty, or property outside some very narrow circumstances.

Some tribunals exercise no power at all. They can act only where they have the consent of the litigants or act to advise another institution.

In a few more posts later this week, I'll give examples of what I mean, and a few implications for all of the non-Article-III adjudicators out there, like administrative agencies, magistrate judges, and bankruptcy judges.

Or if you want 71 pages of this (with 481 footnotes), you can always read the whole article

NEXT: Dear Dr. Fauci: My neighbors stopped self-isolating and are now stumbling slowly down the street. They're not practicing social distancing, and not looking very good. What should I do? I am washing my hands often with soap and hot water.

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  1. Here is one which interests me: the power to imprison. Someone unreflective might suppose that is a clear-cut reservation for Article III powers. But no. The executive can imprison pursuant to executive (especially military) power. And congress can imprison subpoenaed witnesses for contempt, pursuant to either legislative power, or the impeachment power. In the latter case, the proper argument may be that the power exercised is not legislative power, but sovereign power. If that last bit is the right interpretation, note that it may also mean that habeas corpus does not apply in those cases.

    1. Habeas applies to anything unless lawfully suspended. We know that from the Hamdan case.

      And there’s no independent sovereign power. Prof. Baude is right. It’s executive power. Law enforcement. The police, for instance, can detain you. Not for long, but you can be detained and put in a jail. That’s executive power.

      1. There is, of course, independent sovereign power. You don’t know about it, probably because like most folks at least since the mid-20th century, you were never schooled in it. And you also do not know about it because you are not much read in founding era history. But the Declaration of Independence is about little else, and the Constitution is largely structured around the notion. Hamilton’s numbers among the Federalist are pickled in it.

        I don’t expect today’s lawyers to get that. They have a lot invested in the mistaken notion that the government itself is sovereign. In fairness, that can provide a useful working approximation in support of a lot of day-to-day lawyer work, so most lawyers don’t suffer much for not knowing better. And, as always, a great many lawyers are content to polish off arguments they don’t understand with a scornful ipse dixit.

        As for habeas itself, assume a contemnor jailed by the House during an impeachment inquiry. The Constitution is explicit. The House has, “sole power,” to impeach. That means nobody else gets a say. So where is the jailed contemnor to turn for redress? To an Article III court? One of those just decided, correctly I think, that it is powerless to hear impeachment-related questions. The People are as sovereign over the Article III courts as they are over every other aspect of American government. It is not for the courts to tell the People what to do.

        1. “You don’t know about it, probably because like most folks at least since the mid-20th century, you were never schooled in it.”

          That’s right. You see I was schooled in something called the “law”. Indeed, I am something of an expert in it, and am paid a significant amount of money for my expertise as to what the law is.

          Your argument is like saying that an astronomer isn’t schooled in astrology. That’s right, because astrology isn’t actually real. It’s a delusion.

          You hold the delusion that the way the legal system actually runs is completely wrong. When in fact, you are wrong.

          “And you also do not know about it because you are not much read in founding era history.”

          Actually, I probably know a lot more about it than you. I don’t think founding era history is IMPORTANT to adjudication. But that doesn’t mean I don’t know about it. Among other things, I sometimes have to appear before judges that do think it is more important than I do, which means I kind of have to know it.

          “But the Declaration of Independence is about little else”

          Here I thought the Declaration of Independence was about declaring independence from Britain. And, more realistically, a propaganda document that was intended to persuade people to join the war effort. But hey, I don’t know “history” like you do.

          “the Constitution is largely structured around the notion”

          Except it literally never mentions it, while mentioning, over and over again, Executive Power, Legislative Power, and Judicial Power. Was there supposed to be an Article IV about sovereign power and someone just lost the copy?

          “I don’t expect today’s lawyers to get that. They have a lot invested in the mistaken notion that the government itself is sovereign”

          Today’s chemists don’t do alchemy either. Today’s doctors don’t do blood lettings. Today’s macroeconomists don’t use the gold standard.

          “As for habeas itself, assume a contemnor jailed by the House during an impeachment inquiry. The Constitution is explicit. The House has, “sole power,” to impeach. That means nobody else gets a say. So where is the jailed contemnor to turn for redress? To an Article III court? ”

          Considering what an expert you are, you certainly don’t seem to understand the difference between jurisdiction and the merits.

          I will spell it out. An Article III court clearly has jurisdiction to hear a habeas petition from anyone being held in custody under color of law in the United States, so long as the right has not been suspended.

          That doesn’t mean your prisoner will win his case, though.

          “The People are as sovereign over the Article III courts as they are over every other aspect of American government.”

          The “People” can’t do diddly. Any attempt of the “People” to try and stop what the federal government is doing ends up in a Randy Weaver scenario. The government always wins.

          1. “Clearly”

          2. Dilan, you say time and again that there is no such thing as popular sovereignty. What do you think is shutting down the national economy, if not the People using their power to protect themselves? Why are even the most reluctant state governors, across the nation, defying the economic interests which normally support them?

            But if that doesn’t satisfy you, take a look at this in the NYT: How Democrats Can Win Arizona, Forever. The title is deceptive. It doesn’t prescribe, it reports. It reports how popular sovereignty is being mobilized to turn Arizona blue, and has nearly completed the job. Read it.

            1. “What do you think is shutting down the national economy, if not the People using their power to protect themselves?”

              It’s pretty clearly the Government shutting down the national economy, not the People. Which is one of the things that makes your notion of Popular Sovereignty so meaningless. If it were the People, not the Government, shutting down the economy there wouldn’t be all these emergency measures and government proclamations. Do you really think six counties in Northern California threatening to arrest people who go outside without good reason is the People exercising their will?

            2. Another problem with your notion of Popular Sovereignty is that what the People want always seems to coincide with what You want. I haven’t seen any groundswell from the People either for or against shutting everything down. You claim to be able to speak for the People, what are you basing your claim on?

        2. The House has, “sole power,” to impeach.

          How do you get from the sole power to impeach to imprisoning contemptors?

  2. The military justice system is the easiest to acknowledge as the Constitution Article 1 Section 8 provides that Congress can make the “laws” for the military and the Constitution Article 2 Section 2 makes the President the Commander in Chief.

    When one joins the military then one’s Constitutional Rights are altered by Congress thru legislation aka the Uniform Code of Military Justice (UCMJ, 64 Stat. 109, 10 U.S.C. §§ 801-946.) It is still in line with the Constitution however it is altered by Congress in order to have the civilian federal government maintain good order and discipline aka control of the military.

    1. I should have added that the enactment of the military justice system is similar to the enactment of federal District and Appellate Courts by Congressional legislation.

      1. Flame, you overlook the executive’s power, at least for limited intervals, and sometimes for much longer, to imprison almost anyone during the conduct of warfare.

        1. Does that power (now) derive from treaties?

          Which would then make it constitutional.

        2. “Flame, you overlook the executive’s power, at least for limited intervals, and sometimes for much longer, to imprison almost anyone during the conduct of warfare.”

          So did Lincoln, and it turned out he didn’t have that power if the courts were operating.

          1. James, it is understandable that here on a law blog, most of the commenters would interpret pretty much everything as if it were intended to be about the law, the whole law, and nothing but the law. Few of my comments work that way. I am not a lawyer.

            Here and there, I have a smattering of (mostly old) legal insight, based on courtroom time spent as a newspaper reporter, or on professional involvements that touched on particular legal issues on which I had to get expert legal assistance. I am mindful that none of that ever rose to the level of expertise—just as much of the commentary from lawyers commenting here (outside their own legal specialties) quite gets over that bar.

            Unlike some of those lawyers, I constrain myself pretty closely to subjects I do know a bit better than most. One of those subjects is history (although I have never been a historian, I did get some training in the field), and some of the associated political theory related to the founding of the United States. Those are the kinds of subjects about which I have been disputing with Dilan, while he has, typically for him, largely ignored the different tenor of my remarks, and responded instead with legalism. We are not communicating much, because neither of us is well equipped to engage the other on his own ground.

            I mention all that mostly to provide background, so that you and I can avoid falling into a similar talking-past-each-other impasse.

            I suggest you reflect on your remark about Lincoln, but not so much from the point of view of a particular legal precedent. Instead, try to look at the situation in its broadest context, including the context of practical political power, where it comes from, and how it can be limited, if it can. When you say, “and it turned out he didn’t have that power if the courts were operating,” is that really an accurate description of what happened, as it happened? Or is that just a summary of a legal outcome—an outcome of uncertain future influence, which we can see now remains uncertain to a noteworthy degree.

            If you consider the matter retrospectively, with an eye to gauging its future influence, does that bit I just quoted hold up with regard to FDR and the interned Japanese Americans? For a nuanced comment I would endorse on that question, I suggest Justice Jackson’s dissent in Korematsu.

            More generally, historians are trained not to rely on law texts as indicative of historical lived experience, especially if they have legal decisions to refer to instead. And not to rely dogmatically on particular legal decisions, if the historical record as a whole diverges from those. That training is at odds with the kinds of legalistic analysis of the past so often found here at the VC. I find I am never quite prepared for the insistence with which lawyers here—and judges touting originalism in courtrooms—insist that legal expertise, and only legal expertise, is the key to unlocking the past, and applying its mysteries to present legal controversies. Aside from the gratuitous exclusivity of the method, the entire enterprise seems suspect to folks trained to other standards for evaluating history.

            1. “Unlike some of those lawyers, I constrain myself pretty closely to subjects I do know a bit better than most.”

              I needed a good laugh this morning.

              1. “Unlike some of those lawyers, I constrain myself pretty closely to subjects I do know a bit better than most.”

                Nothing wrong with this guy’s imagination. It works quite effectively for him

    2. “. . . then one’s Constitutional Rights are altered by Congress thru legislation. . . .”

      One could argue that since we (currently) have a volunteer force, that the govt is not altering/reducing anyone’s rights.

      If you voluntarily give up a right, then that’s not the same as the govt taking that right.

      1. But what if they tell you that you volunteered to sacrifice that right and that’s not the way you remember it?

    3. That’s not a terrible argument, but it is a bit circular. Why is the power of military courts and commissions not part of the “Judicial Power”?

      I think the answer is simply history- it has never been so considered.

      1. Actually,this power has long been understood to be judicial in nature.

    4. The UCMJ is expressly authorized by Constitutional text, which allows Congress to create whatever system of courts they see as necessary, subordinate to the USSC.

      1. Swing and a miss.

        1. You need to improve your skill with metaphors. You did that one so bad your metaphor suggests I was in some way inaccurate. Feel free t otry again.

          1. BTW… my Latin is weak. Is your chosen name a medical term meaning “anal leakage”?

  3. It has always seemed to me that Article I courts are the counterexample to the unitary executive theory. Article I courts are subject to due process limitations which flatly preclude the sort of complete control over their officers that the unitary executive theory posits.ts.

    1. Nor can the unitary executive theory be saved by carving out exemptions. Exceptions are recognitions of dualities. Just as a theology in which the one god is in control of everything except those things (however few) that are under the control of the other god isn’t a monotheism, so an executive that controls all executive functions except those executive functions it doesn’t, however few, isn’t a unitary executive.

      1. Explain which unitary executove theory you are challenging.

  4. “a few peopThle have tried to come up with some kind of middle positions (for instance, that there must be Article III review), but in my view these have not been successful.”

    The question left open is whether “the judicial power of the United States” necessarily implies “the power to resolve all conflicts that arise within the United States” or that it does not.

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