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Legislative Courts: The Canter Case

Legislative courts, so–called because they are created by Congress in pursuance of its general legislative powers, have comprised a significant part of the federal judiciary.45 The distinction between constitutional courts and legislative courts was first made in American Ins. Co. v. Canter,46 which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four–year term in office. Said Chief Justice Marshall for the Court: “These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3rd article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States.”47 The Court went on to hold that admiralty jurisdiction can be exercised in the States only in those courts which are established in pursuance of Article III but that the same limitation does not apply to the territorial courts, for in legislating for them “Congress exercises the combined powers of the general, and of a state government.”48

Canter postulated a simple proposition: “Constitutional courts exercise the judicial power described in Art. III of the Constitution; legislative courts do not and cannot.”49 A two–fold difficulty at[p.605]tended this proposition, however. Admiralty jurisdiction is included within the “judicial power of the United States” specifically in Article III, requiring an explanation how this territorial court could receive and exercise it. Second, if territorial courts could not exercise Article III power, how might their decisions be subjected to appellate review in the Supreme Court, or indeed in other Article III courts, which could exercise only Article III judicial power?50 Moreover, if in fact some “judicial power” may be devolved upon courts not having the constitutional security of tenure and salary, what prevents Congress from undermining those values intended to be protected by Article III’s guarantees by giving jurisdiction to nonprotected entities that, being subjected to influence, would be bent to the popular will?

Attempts to explain or to rationalize the predicament or to provide a principled limiting point have from Canter to the present resulted in “frequently arcane distinctions and confusing precedents” spelled out in cases comprising “landmarks on a judicial ‘darkling plain’ where ignorant armies have clashed by night”.51 Nonetheless, Article I courts are quite usual entities in our judicial system.52

Power of Congress Over Legislative Courts.—In creating legislative courts, Congress is not limited by the restrictions imposed in Article III concerning tenure during good behavior and the prohibition against diminution of salaries. Congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the Tax Court, and it may subject the judges of legislative courts to removal by the President,53 or it may reduce their[p.606]salaries during their terms.54 Similarly, it follows that Congress can vest in legislative courts nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus, in Gordon v. United States,55 there was no objection to the power of the Secretary of the Treasury and Congress to revise or suspend the early judgments of the Court of Claims. Likewise, in United States v. Ferreira,56 the Court sustained the act conferring powers on the Florida territorial court to examine claims rising under the Spanish treaty and to report its decisions and the evidence on which they were based to the Secretary of the Treasury for subsequent action. “A power of this description,” it was said, “may constitutionally be conferred on a Secretary as well as on a commissioner. But [it] is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.”57

Review of Legislative Courts by Supreme Court.—Chief Justice Taney’s view, that would have been expressed in Gordon,58 that the judgments of legislative courts could never be reviewed by the Supreme Court, was tacitly rejected in DeGroot v. United States,59 in which the Court took jurisdiction from a final judgment of the Court of Claims. Since the decision in this case, the authority of the Court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts but rather upon the nature of the proceeding before the lower court and the finality of its judgment. The Supreme Court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such a body.60 But in proceedings before a legislative court which are judicial in nature, admit of a final judgment, and involve the per[p.607]formance of judicial functions and therefore the exercise of judicial power, the Court may be vested with appellate jurisdiction.61


Footnotes

45 In Freytag v. CIR, 501 U.S. 868 (1991), a controverted decision held Article I courts to be “Courts of Law” for purposes of the appointments clause. Art. II, Sec. 2, cl. 2. See id., 888–892 (majority opinion), and 901–914 (Justice Scalia dissenting).
46 1 Pet. (26 U.S.) 511 (1828).
47 Id., 546.
48 In Glidden Co. v. Zdanok, 370 U.S. 530, 544–545 (1962), Justice Harlan asserted that Chief Justice Marshall in the Canter case “did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. . . . All the Chief Justice meant . . . is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article. . . .”
49 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 (1982) (Justice White dissenting).
50 That the Supreme Court could review the judgments of territorial courts was established in Durousseau v. United States, 6 Cr. (10 U.S.) 307 (1810). See also Benner v. Porter, 9 How. (50 U.S.) 235, 243 (1850); Clinton v. Englebrecht, 13 Wall. (80 U.S.) 434 (1872); Balzac v. Porto Rico, 258 U.S. 298, 312–313 (1922).
51 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90, 91 (1982) (Justice Rehnquist concurring). The “darkling plain” language is his attribution to Justice White’s historical summary.
52 In addition to the local courts of the District of Columbia, the bankruptcy courts, and the U. S. Court of Federal Claims, considered infra, these include the United States Tax Court, formerly an independent agency in the Treasury Department, but by the Tax Reform Act of 1969, Sec. 951, 83 Stat. 730 , 26 U.S.C. Sec. 7441 , made an Article I court of record, the Court of Veterans Appeals, Act of Nov. 18, 1988, 102 Stat. 4105 , 38 U.S.C. Sec. 4051 , and the courts of the territories of the United States. Magistrate judges are adjuncts of the District Courts, see infra, n. 105, and perform a large number of functions, usually requiring the consent of the litigants. See Gomez v. United States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 923 (1991). The U. S. Court of Military Appeals, strictly speaking, is not part of the judiciary but is a military tribunal, 10 U.S.C. Sec. 867 , although Congress designated it an Article I tribunal and has recently given the Supreme Court certiorari jurisdiction over its decisions.
53 McAllister v. United States, 141 U.S. 174 (1891).
54 United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289 U.S. 553 (1933).
55 2 Wall. (69 U.S.) 561 (1864).
56 13 How. (54 U.S.) 40 (1852).
57 Id., 48.
58 The opinion in Gordon v. United States, 2 Wall. (69 U.S.) 561 (1864), had originally been prepared by Chief Justice Taney, but following his death and reargument of the case the opinion cited was issued. The Court later directed the publishing of Taney’s original opinion at 117 U.S. 697. See also United States v. Jones, 119 U.S. 477, 478 (1886), in which the Court noted that the official report of Chief Justice Chase’s Gordon opinion and the Court’s own record showed differences and quoted the record.
59 5 Wall. (72 U.S.) 419 (1867). See also United States v. Jones, 119 U.S. 477 (1886).
60 E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Comm. v. General Elec. Co., 281 U.S. 464 (1930); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). See Glidden Co. v. Zdanok, 370 U.S. 530, 576, 577–579 (1962).
61 Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).
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