|Glidden Co. v. Zdanok
288 F.2d 99; 111 U.S.App.D.C. 238, 296 F.2d 360, affirmed.
[ Harlan ]
[ Clark ]
[ Douglas ]
Glidden Co. v. Zdanok
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
The decision in these cases has nothing to do with the character, ability, or qualification of the individuals who sat on assignment on the Court of Appeals in No. 242 and [p590] on the District Court [n1] in No. 481. The problem is an impersonal one, concerning the differences between an Article I court and an Article III court. My Brother HARLAN calls it a problem of a "highly theoretical nature." Far from being "theoretical," it is intensely practical, for it deals with powers of judges over the life and liberty of defendants in criminal cases and over vast property interests in complicated trials customarily involving the right to trial by jury.
Prior to today's decision, the distinction between the two courts had been clear and unmistakable. By Art. I, § 8, Congress is given a wide range of powers, including [p591] the power "to pay the Debts" of the United States and the power to "lay and collect Taxes, Duties, Imposts and Excises." By Art. I, § 8, Congress is also given the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Pursuant to the latter -- the Necessary and Proper Clause -- the Court of Claims was created "to pay the Debts"; [n2] and the Court of Customs and Patent Appeals was created in furtherance of the collection of duties. My Brother HARLAN shows that the Court of Customs Appeals traces back to the Payne-Aldrich Tariff Act of August 5, 1909, which should be proof enough that it is an administrative court, performing essentially an executive task. [n3] [p592]
In Williams v. United States, 289 U.S. 553, the Court, in a unanimous decision written by Mr. Justice Sutherland, held that the Court of Claims, though exercising judicial power, was an Article I court. And in Ex parte Bakelite Corp., 279 U.S. 438, the Court, in a unanimous opinion written by Mr. Justice Van Devanter, held the Court of Customs Appeals to be an Article I court. Taft was Chief Justice when Ex parte Bakelite was decided. Hughes was Chief Justice when Williams v. United States was decided. I mention the two regimes that filed the unanimous opinions in those cases to indicate the vintage of the authority which decided them. Their decisions, of course, do not bind us, for they dealt with matters of constitutional interpretation which are always open. Yet no new history has been unearthed to show that the Taft and the Hughes Courts were wrong on the technical, but vitally important, question now presented.
Mr. Justice Van Devanter, in Ex parte Bakelite, marked the line between the Court of Claims and the Court of [p593] Customs and Patent Appeals, on the one hand, and the District Courts and Courts of Appeals, on the other:
Those established under the specific power given in section 2 of Article III are called constitutional courts. They share in the exercise of the judicial power defined in that section, can be invested with no other jurisdiction, and have judges who hold office during good behavior, with no power in Congress to provide otherwise. On the other hand, those created by Congress in the exertion of other powers are called legislative courts. Their functions always are directed to the execution of one or more of such powers, and are prescribed by Congress independently of section 2 of Article III, and their judges hold for such term as Congress prescribes, whether it be a fixed period of years or during good behavior.
Id. at 449.
My Brother HARLAN emphasizes that both Judge Madden of the Court of Claims and Judge Jackson of the Court of Customs and Patent Appeals "enjoy statutory assurance of tenure and compensation", and so they do. But that statement reveals one basic difference between an Article III judge and an Article I judge. The latter's tenure is statutory, and statutory only; Article I contains no guarantee that the judges of Article I courts have life appointments. Nor does it provide that their salaries may not be reduced during their term of office. On the other hand, the tenure of an Article III judge is during "good behaviour"; moreover, Article III provides that its judges shall have a compensation that "shall not be diminished during their Continuance in Office." See O'Malley v. Woodrough, 307 U.S. 277. To repeat, there is not a word in Article I giving its courts such protection in tenure or in salary. A constitutional amendment would be necessary to supply Article I judges with the guarantees [p594] of tenure and salary that Article III gives its judges. The majority attempts to evade this problem by looking to so-called "Congressional intent" to find the creation of an Article III court. Congress, however, has always understood that it was only establishing Article I courts when it created the Court of Claims and the Court of Customs and Patent Appeals. The tenure it affixed to the judges of those tribunals was, of necessity, statutory only, as no mandate or requirement of Article I was involved.
The importance of these provisions to the independence of the judiciary needs no argument. Hamilton stated the entire case in The Federalist No. 79 (Lodge ed.1908), pp. 491-493:
Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realized, in practice, the complete separation of the judicial from the legislative power in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of [p595] the United States "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office."
This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant today might, in half a century, become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. . . .
This provision for the support of the judges bears every mark of prudence and efficacy, and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.
The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and [p596] disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.
We should say here what was said in Toth v. Quarles, 350 U.S. 11, 17:
. . . the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders, and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But, from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
Tenure that is guaranteed by the Constitution is a badge of a judge of an Article III court. The argument that mere statutory tenure is sufficient for judges of Article III courts was authoritatively answered in Ex parte Bakelite Corp., supra, at 459-460:
. . . the argument is fallacious. It mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred. Nor has there been any settled practice on the part of Congress which gives special significance to the absence or presence of a provision respecting the tenure of judges. This may be illustrated by two citations. The same Congress that created the Court of Customs Appeals made provision for five additional circuit judges and declared that they should [p597] hold their offices during good behavior, and yet the status of the judges was the same as it would have been had that declaration been omitted. In creating courts for some of the Territories, Congress failed to include a provision fixing the tenure of the judges; but the courts became legislative courts just as if such a provision had been included.
Congress could make members of the Interstate Commerce Commission lifetime appointees. Yet I suppose no one would go so far as to say that a member of the Interstate Commerce Commission could be assigned to sit on the District Court or on the Court of Appeals. But if any agency member is disqualified, why is a member of another Article I tribunal, viz., the Court of Claims or the Court of Customs and Patent Appeals, qualified? No distinction can be drawn based on the functions performed by the Interstate Commerce Commission and those performed by the other two legislative tribunals. In each case, some adjudicatory functions are performed. [n4] Though the judicial functions of the Interstate Commerce Commission are as distinct as those of the Court of Claims, they nevertheless derive from Article I, and they are functions that Congress can exercise directly or delegate to an agency. Williams v. United States, supra, pp. 567-571. To make the present decision turn on whether the Court of Claims and the Court of Customs and Patent Appeals perform "judicial" functions is to adopt a false standard. The manner in which the majority reasons exposes the fallacy.
The majority says that, once the United States consents to be sued, all problems of "justiciability" are satisfied, and [p598] that Congress has broad powers to convert "moral" obligations into "legal" ones enforceable by "constitutional" courts. The truth is, I think, that the dimensions of Article III can be altered only by the amending process, not by legislation. Congress can create as respects certain claims a limited "justiciability." But if "justiciability" in the "constitutional" sense is involved, then there must be trial by jury, assuming, as my Brother HARLAN does, that the claim is for recovery for torts or some other compensable injury. To repeat, it does not advance analysis by calling the function a "judicial" one (see Pope v. United States, 323 U.S. 1, 12), for both Article I courts and Article III courts perform functions of that character. The crucial question on this phase of the problems is the manner in which that judicial power is to be exercised.
As Mr. Justice Brandeis made clear in Tutun v. United States, 270 U.S. 568, 576-577, an administrative remedy may be "judicial." The question here is different; it is whether the procedures utilized by the tribunal must comport with those set forth in the Bill of Rights and in the body of the Constitution. Yet who would maintain that, in an administrative action for damages a jury trial was necessary?
Judges of the Article III courts work by standards and procedures which are either specified in the Bill of Rights or supplied by well known historic precedents. Article III courts are law courts, equity courts, and admiralty courts [n5] -- all specifically named in Article III. They sit [p599] to determine "cases" or "controversies." But Article I courts have no such restrictions. They need not be confined to "cases" or "controversies," but can dispense legislative largesse. See United States v. Tillamooks, 329 U.S. 40; 341 U.S. 48. Their decisions may affect vital interests; yet, like legislative bodies, zoning commissions, and other administrative bodies, they need not observe the same standards of due process required in trials of Article III "cases" or "controversies." See Bi-Metallic Co. v. Colorado, 239 U.S. 441. That is what Chief Justice Marshall meant when he said, in American Ins. Co. v. Canter, 1 Pet. 511, 545-546, that an Article I court (in that case, a territorial court) could make its adjudications without regard to the limitations of Article III. On the other hand, as the Court in O'Donoghue v. United States, supra, at 546, observed, Article III courts could not be endowed with the administrative and legislative powers (or with the power to render advisory opinions) which Article I tribunals or agencies exercise.
In other words, the question, apart from the constitutional guarantee of tenure and the provision against diminution of salary, concerns the functions of the particular tribunal. Article III courts have prescribed for them constitutional standards, some of which are in the Bill of Rights, while some (as, for example, those concerning bills of attainder and ex post facto laws) are in the body of the Constitution itself. Article I courts, on the other hand, are agencies of the legislative or executive branch. Thus, while Article III courts of law must sit with a jury in suits where the value in controversy exceeds $20, the Court of Claims -- an Article I court -- is not so confined by the Seventh Amendment. The claims which [p600] it hears are claims with respect to which the Government has agreed to be sued. As the Court said in McElrath v. United States, 102 U.S. 426, 440, since the jurisdiction of the Court of Claims is permissive only, Congress can prescribe the rules and the procedures to be followed in pursuing claims against the Government. Likewise, the Court of Customs Appeals hears appeals that
include nothing which inherently or necessarily requires judicial determination, but only matters the determination of which may be, and at times has been, committed exclusively to executive officers.
Ex parte Bakelite Corp., supra, at 458.
The judicial functions exercised by Article III courts cannot be performed by Congress nor delegated to agencies under its supervision and control. [n6] The bill of [p601] attainder is banned by Art. I, § 9. If there is to be punishment, courts (in the constitutional sense) must administer it. As we stated in United States v. Lovett, 328 U.S. 303, 317:
Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.
Moreover, when an Article III court of law acts, there is a precise procedure that must be followed:
An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and, even after conviction, no cruel and unusual punishment can be inflicted upon him.
Id. 317-318. [p602]
On the civil side, there is not only the right to trial by jury in suits at common law where the value in controversy exceeds $20, but there is also the mandate of the Seventh Amendment directing that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States than according to the rules of the common law."
Neither of these limitations is germane to litigation in the Court of Claims or in the Court of Customs and Patent Appeals. Those courts, moreover, exercise no criminal jurisdiction, no admiralty jurisdiction, no equity jurisdiction.
Thus, I cannot say, as some do, that the distinction between the two kinds of courts is a "matter of language." [n8] The majority over and again emphasizes the declaration by Congress that each of the courts in question is an Article III court. It seems that the majority tries to gain momentum for its decision from those congressional declarations. This Court, however is the expositor of the meaning of the Constitution, as Marbury v. Madison, 1 Cranch 137, held, and a congressional enactment in the field of Article III is entitled to no greater weight than in other areas. The declarations by Congress that these legislative tribunals are Article III [p603] courts [n9] would be determinative only if Congress had the power to modify or alter the concepts that radiate throughout Article III and throughout those provisions of the Bill of Rights that specify how the judicial power granted by Article III shall be exercised.
An appointment is made by the President and confirmed by the Senate in light of the duties of the particular office. Men eminently qualified to sit on Article I tribunals or agencies are not picked or confirmed in light of their qualifications to preside at jury trials or to process on appeal the myriad of constitutional and procedural problems involved in Article III "cases" or "controversies." A President who sent a name to the Senate for the Interstate Commerce Commission or Federal Trade Commission might never dream of entrusting the nominee with the powers of an Article III judge. The tasks are so different, the responsibilities and the qualifications so diverse, that it is difficult for one who knows the federal system to see how in the world of practical affairs these offices are interchangeable.
In the Senate debate on the Court of Customs Appeals, Senator Cummins stated that the judges who were to man it were to become tariff "experts" whose judicial business would be "confined to the matter of the duties on imports." 44 Cong.Rec. 4185. Senator McCumber, who spoke for the Committee, emphasized the technical nature of the work of those judges and the unique specialization of their work.
The law governing the development of the human intellect is such that constant study of a particular question necessarily broadens and expands and intensifies and deepens the mind on that particular subject. [p604] Any man who has gone over even the cotton schedule will understand how delicate questions will arise; how complex those questions must necessarily be, and how necessary it will be to have judges who will possess technical knowledge upon that subject, and a technical knowledge can only be obtained by a constant daily study of those questions. For that second reason, it was thought best to have a court whose whole attention, whose whole life work, should be given to that particular subject.
Id. at 4199.
Could there be any doubt that the late John J. Parker, rejected by the Senate for this Court, would have been confirmed for one of these Article I courts?
It is said that Congress could separate law and equity and create federal judges who, though Article III judges, sit entirely on the equity side. If Congress can do that, it is said that Congress can divide up all judicial power as it chooses, and, by making tenure permanent, allow judges to be assigned from an Article I to an Article III court. The fact that Article III judicial power may be so divided as to produce judges with no experience in the trial of jury cases or in the review of them on appeal is no excuse for allowing legislative judges to be imported into the important fields that Article III preserves and that are partly safeguarded by the Bill of Rights and partly represented by ancient admiralty practice [n10] and equity procedures. Federal judges named to Article III courts are picked in light of the functions entrusted to them. No one knows whether a President would have appointed to an Article III court a man he named to an Article I court.
My view is that we subtly undermine the constitutional system when we treat federal judges as fungible. If members of the Court of Claims and of the Court of Customs [p605] and Patent Appeals can sit on life-and-death cases in Article III courts, so can a member of any administrative agency who has a statutory tenure that future judges sitting on this Court by some mysterious manner may change to constitutional tenure. With all deference, this seems to me to be a light-hearted treatment of Article III functions. [n11] Men of highest quality chosen as Article I judges might never pass muster for Article III courts when tested by their record of tolerance for minorities [p606] and for their respect of the Bill of Rights -- neither of which is as crucial to the performance of the duties of those who sit in Article I courts as it is to the duties of Article III judges.
In sum, judges who do not perform Article III functions, who do not enjoy constitutional tenure, and whose salaries are not constitutionally protected against diminution during their term of office cannot be Article III judges.
Judges who perform "judicial" functions on Article I courts do not adjudicate "cases" or "controversies" in the sense of Article III. They are not bound by the requirements of the Seventh Amendment concerning trial by jury.
Judges who sit on Article I courts are chosen for administrative or allied skills, not for their qualifications to sit in cases involving the vast interests of life, liberty, or property for whose protection the Bill of Rights and the other guarantees in the main body of the Constitution, including the ban on bills of attainder and ex post facto laws, were designed. Judges who might be confirmed for an Article I court might never pass muster for the onerous and life-or-death duties of Article III judges.
For these reasons, I would reverse the judgments below.
1. The District Court of the District of Columbia, like the "inferior courts" established by Congress under Art. III, § 1, of the Constitution, is an Article III court (O'Donoghue v. United States, 289 U.S. 516), even though it possesses powers that Article III courts could not exercise. Congress, acting under its plenary power granted by Art. I, § 8, to legislate for the District of Columbia, has from time to time vested in the courts of the District administrative and even legislative powers. See, e.g., Keller v. Potomac Electric Co., 261 U.S. 428, 440-443 (review of ratemaking); Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 698-701 (patent and trademark appeals); Federal Radio Comm'n v. General Electric Co., 281 U.S. 464, 467-468 (review of radio station licensing; cf. Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 274-278). Congress has also authorized District Court judges to appoint members of the Board of Education. D.C.Code, § 31-101.
In O'Donoghue v. United States, supra, at 545, the Court said:
The fact that Congress, under another and plenary grant of power, has conferred upon these courts jurisdiction over non-federal causes of action, or over quasi-judicial or administrative matters, does not affect the question. In dealing with the District, Congress possesses the powers which belong to it in respect of territory within a state, and also the powers of a state.
The eighteenth-century courts in this country performed many administrative functions. See Pound, Organization of Courts (1940), pp. 88-89. The propriety of the union of legislative and judicial powers in a state court was assumed in Prentis v. Atlantic Coast Line, 211 U.S. 210.
Legislative courts also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination, and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals.
Conspicuous among such matters are claims against the United States. These may arise in many ways, and may be for money, lands or other things. They all admit of legislative or executive determination, and yet, from their nature, are susceptible of determination by courts; but no court can have cognizance of them except as Congress makes specific provision therefor. Nor do claimants have any right to sue on them unless Congress consents, and Congress may attach to its consent such conditions as it deems proper, even to requiring that the suits be brought in a legislative court specially created to consider them.
The Court of Claims is such a court. It was created, and has been maintained, as a special tribunal to examine and determine claims for money against the United States. This is a function which belongs primarily to Congress as an incident of its power to pay the debts of the United States. But the function is one which Congress has a discretion either to exercise directly or to delegate to other agencies.
Ex parte Bakelite Corp., 279 U.S. 438, 451-452.
The Court of Customs Appeals was created by Congress in virtue of its power to lay and collect duties on imports and to adopt any appropriate means of carrying that power into execution. The full province of the court under the act creating it is that of determining matters arising between the Government and others in the executive administration and application of the customs laws. These matters are brought before it by appeals from decisions of the Customs Court, formerly called the Board of General Appraisers. The appeals include nothing which inherently or necessarily requires judicial determination, but only matters the determination of which may be, and at times has been, committed exclusively to executive officers. True, the provisions of the customs laws requiring duties to be paid and turned into the Treasury promptly, without awaiting disposal of protests against rulings of appraisers and collectors, operate in many instances to convert the protests into applications to refund part or all of the money paid; but this does not make the matters involved in the protests any the less susceptible of determination by executive officers. In fact, their final determination has been at times confided to the Secretary of the Treasury, with no recourse to judicial proceedings.
Ex parte Bakelite Corp., supra, note 2, at 458.
4. The Interstate Commerce Commission has long entered reparation orders directing carriers to pay shippers specified sums of money plus interest for excessive and unreasonable rates. See Meeker v. Lehigh Valley R. Co., 236 U.S. 434; II Sharfman, The Interstate Commerce Commission (1931), pp. 387-388.
5. As respects admiralty, Chief Justice Marshall said in American Ins. Co. v. Canter, 1 Pet. 511, 545:
If we have recourse to that pure fountain from which all the jurisdiction of the Federal Courts is derived, we find language employed which cannot well be misunderstood. The Constitution declares, that
the judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, or other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction.
The Constitution certainly contemplates these as three distinct classes of cases. . . .
6. The limitations on Article III courts that distinguish them from Article I courts were stated by Chief Justice Vinson in National Insurance Co. v. Tidewater Co., 337 U.S. 582, 629-630, in words that have, I think, general acceptance, though on the precise issue he wrote in dissent:
In Keller v. Potomac Electric Co., 261 U.S. 428 (1923), where this Court had before it an Act under which the courts of the District of Columbia were given revisory power over rates set by the Public Utilities Commission of the District, the appellee sought to sustain the appellate jurisdiction given this Court by the Act on the basis that,
Although Art. III of the Constitution limits the jurisdiction of the federal courts, this limitation is subject to the power of Congress to enlarge the jurisdiction where such enlargement may reasonably be required to enable Congress to exercise the express powers conferred upon it by the Constitution.
261 U.S. at 435. There, as here, the power relied upon was that given Congress to exercise exclusive jurisdiction over the District of Columbia, and to make all laws necessary and proper to carry such powers into effect. But this Court clearly and unequivocally rejected the contention that Congress could thus extend the jurisdiction of constitutional courts, citing the note to Hayburn's Case, 2 Dall. 409, 410 (1792); United States v. Ferreira, 13 How. 40, note, p. 52 (1851), and Gordon v. United States, 117 U.S. 697 (1864). These and other decisions of this Court clearly condition the power of a constitutional court to take cognizance of any cause upon the existence of a suit instituted according to the regular course of judicial procedure, Marbury v. Madison, 1 Cranch 137 (1803), the power to pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision, Muskrat v. United States, 219 U.S. 346 (1911); Gordon v. United States, supra, the absence of revisory or appellate power in any other branch of Government, Hayburn's Case, supra; United States v. Ferreira, supra, and the absence of administrative or legislative issues or controversies, Keller v. Potomac Electric Co., supra; Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927).
7. See 28 U.S.C. § 1492 giving the Court of Claims power "to report to either House of Congress on any bill referred to the court by such House." And see 28 U.S.C. §§ 2509 2510. 28 U.S.C. § 1542 gave the Court of Customs and Patent Appeals a kind of administrative review over certain decisions of the patent office. And see note 2, supra.
8. See H.R.Rep. No. 2348, 84th Cong., 2d Sess., p. 3.
9. See Act of July 28, 1953, 57 Stat. 226 (Court of Claims); Act of July 14, 1956, 70 Stat. 532 (Customs Court); Act of August 25, 1958 72 Stat. 848 (Court of Customs and Patent Appeals).
10. See The Lottawanna, 21 Wall. 558, 575; The Osceola, 189 U.S. 158.
11. The Court does great mischief in today's opinions. The opinion of my Brother HARLAN stirs a host of problems that need not be opened. What is done will, I fear, plague us for years.
First, that opinion cites with approval Ex parte McCardle, 7 Wall. 506, in which Congress withdrew jurisdiction of this Court to review a habeas corpus case that was sub judice, and then apparently draws a distinction between that case and United States v. Klein, 13 Wall. 128, where such withdrawal was not permitted in a property claim. There is a serious question whether the McCardle case could command a majority view today. Certainly the distinction between liberty and property (which emanates from this portion of my Brother HARLAN's opinion) has no vitality even in terms of the Due Process Clause.
Second, Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, is apparently overruled. Why this is done is not apparent. That case ruled on the question whether a ruling on a Patent Office determination was "judicial." Whether it was or not is immaterial, because, as already noted, Article I courts, like Article III courts, exercise "judicial" power. The only relevant question here is whether a court that need not follow Article III procedures is nonetheless an Article III court.