The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday I posted about when executive adjudication is generally permissible (viz., when permitted by the due process clause) and how it requires some kind of executive supervision. Deeper problems are presented by the role of magistrate judges and bankruptcy judges, both of whom are non-life-tenured officers who seem to be part of the judicial branch rather than the executive branch.
Because they are not Article III judges, nor judges of another government, they cannot exercise their own judicial power. And because they are not members of the executive branch, they cannot exercise executive power either. Indeed, I argue in the article that they have no coercive power of their own.
That does not mean that they are powerless. Such officers can still adjudicate and take whatever actions are authorized by the parties consent (as magistrate judges do in some circumstances) and they can still make recommendations to a proper Article III court, such as a district court, so that that court can exercise judicial power. But going beyond that—as the law sometimes authorizes them to do—seems hard to square with the constitutional structure.
Thanks for reading.