The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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…