Federal Courts

The Constitutionality of Territorial Courts

Adjudication Outside Article III (part two)


I posted yesterday about my general claim that state courts, territorial courts, and the like are constitutional even though they do not comply with Article III. Here I'll post about why.

The key is in four words of Article III that we don't usually pay that much attention. It says: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

The four key words are "of the United States." That means that Article III does not speak to who can exercise the judicial power of other governments. And that is why there is no Article III problem with state courts, which exercise the judicial power of their respective states—the judicial power of the state of Connecticut, and so on.

All of this might seem obvious, but it extends to less obvious conclusions. The U.S. territories, for instance, are not states. But they have been governed by non-Article-III courts more or less since the founding. The Supreme Court upheld these courts in a confusing opinion known as American Insurance Co. v. Canter, but people aren't quite sure why.

The answer is that territorial courts exercise the judicial power of their territories, just as state courts exercise the judicial power of their states. Indeed, the territorial courts upheld during the 19th century had their powers described in just those terms.

And that is true even though they were created by Congress. Congress has the power to govern territories and set up territorial governments, but those territorial governments have always been thought to exercise the powers of their own territories. That's why territorial legislatures don't have to be appointed by the President, and the same logic goes for territorial courts. (It also answers one of the several questions at issue in the PROMESA litigation about Puerto Rico bankruptcy, though as I've written that statute is unconstitutional for other reasons.)

The same logic also explains the constitutionality of tribal courts, of foreign, multinational, and international tribunals, and of some of the motley courts that Congress has recognized over time. As always, for more on this feel free to read the long article.

Tomorrow I'll explain why military courts and so-called "Article I courts" are different.

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  1. Interesting. One difficulty in saying that the territorial courts are courts of a different government, not of a different sovereign, is that the Constitution frequently distinguishes “the government of the United States” from “the United States.” The vesting clause of Article II would therefore seem to refer to the state of the United States, not its government. Coming from the context of the parliamentary democracy of England, the founders were presumably sensitive to the distinction, and perhaps wanted to avoid the abuses of the executive’s Privy Council and Star Chamber adjudication. (The former of which had jurisdiction over the colonies.)

    Also the territorial court devised in section four of the Northwest Ordinance (still an organic document of the federal union) is specifically described as a “common law” court, presumably to distinguish if from the circumscribed jurisdiction of the pre-1864 federal circuit judiciary and a Supreme Court merely vested with matters of original jurisdiction and certified questions from the circuits. A common-law court established by the federal state of the United States would seem to be a direct exercise of national authority to ordain and establish a common-law scheme for places that hadn’t gotten to statehood yet, and Congressionally created courts are part of the vesting clause, and therefore participants in the Federal power.


    — Mr. Dove

    1. Corrigendum slip: “The vesting clause of Article III would therefore seem to refer…”

  2. I think that military courts are a special case. Military discipline, historically, has not been a subject matter for civilian courts. Courts-martial exercise military power, not judicial power. Immigration is likely similar. There is no obligation to give prospective immigrants at the border a hearing them. Giving them one is a matter of grace.

    I also think that if one takes the unitary executive theory seriously, it follows that what is now done by most executive-branch administrative law judges should be being done by the judicial branch instead. And if it can be done by administrative law judges, it follows that the executive branch isn’t really unitary.

    I think that in general, the US can proceed administratively, as long as there is a right of appeal to Article III courts. But it seems to me that some of the shenanigans that have been pulled, like taking action and then simply sitting on hearings, avoiding reaching a final decision to stymie recourse to the courts – are clearly unconstitutional. Administrative hearings are constitutional only to the extent that they are actually streamlined processes for adjudicating matters that don’t impede the right of ultimate recourse to the courts. If they step outside that and do things like manipulate the exhaustion doctrine to stymie access to the courts, that’s clearly (in my view) unconstitutional.

    1. Courts-martial have long been understood to exercise judicial power. See W.D. Hart, Observations on Military Law, 14 (1859), cited in Ortiz v. United States, No. 16-1423, slip op. at 10. See also Runkle v. United States, 122
      U. S. 543, 558 (1887) (quoting 11 Op. Atty. Gen. 19, 21. (1864)) and W. Winthop, Military Law and Precedents, 54 (2d edition 1920)

  3. I spent seven years litigating in Territorial Courts as well as in Federal Courts in a US Territory.

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