CRS Annotated Constitution

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The “Public Rights” Distinction.—A major delineation of the distinction between Article I courts and Article III courts was attempted in Murray’s Lessee v. Hoboken Land & Improvement Co.62 In this case was challenged a summary procedure, without benefit of the courts, for the collection by the United States of moneys claimed to be due from one of its customs collectors. It was objected that the assessment and collection was a judicial act carried out by nonjudicial officers and thus invalid under Article III. Accepting that the acts complained of were judicial, the Court nonetheless sustained the act by distinguishing between any act, “which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty,” which, in other words, is inherently judicial, and other acts which Congress may vest in courts or in other agencies. “[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.”63 The distinction was between those acts which historically had been determined by courts and those which historically had been resolved by executive or legislative acts and comprehended those matters that arose between the government and others. Thus, Article I courts “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.”64

Among the matters susceptible of judicial determination, but not requiring it, are claims against the United States,65 the disposal of public lands and claims arising therefrom,66 questions concerning membership in the Indian tribes,67 and questions arising out of the administration of the customs and internal revenue[p.608]laws.68 Other courts similar to territorial courts, such as consular courts and military courts martial, may be justified on like grounds.69

The “public rights” distinction appears today to be a description without a significant distinction. Thus, in Crowell v. Benson,70 the Court approved an administrative scheme for determination, subject to judicial review, of maritime employee compensation claims, although it acknowledged that the case involved “one of private right, that is, of the liability of one individual to another under the law as defined.”71 This scheme was permissible, the Court said, because in cases arising out of congressional statutes, an administrative tribunal could make findings of fact and render an initial decision of legal and constitutional questions, as long as there is adequate review in a constitutional court.72 The “essential attributes” of decision must remain in an Article III court, but so long as it does, Congress may utilize administrative decisionmakers in those private rights cases that arise in the context of a comprehensive federal statutory scheme.73 That the “public rights” distinction marked a dividing line between those matters that could be assigned to legislative courts and to administrative agencies and those matters “of private right” that could not be was reasserted in Marathon, but there was much the Court plurality did not explain.74

The Court continued to waver with respect to the importance to decision–making of the public rights/private rights distinction. In[p.609]two cases following Marathon, it rejected the distinction as “a bright line test,” and instead focused on “substance”—i.e., on the extent to which the particular grant of jurisdiction to an Article I court threatened judicial integrity and separation of powers principles.75 Nonetheless, the Court indicated that the distinction may be an appropriate starting point for analysis. Thus, the fact that private rights traditionally at the core of Article III jurisdiction are at stake leads the Court to “searching” inquiry as to whether Congress is encroaching inordinately on judicial functions, while the concern is not so great where “public” rights are involved.76

However, in a subsequent case, the distinction was pronounced determinative not only of the issue whether a matter could be referred to a non–Article III tribunal but whether Congress could dispense with civil jury trials.77 In so doing, however, the Court vitiated much of the core content of “private” rights as a concept and left resolution of the central issue to a balancing test. That is, “public” rights are, strictly speaking, those in which the cause of action inheres in or lies against the Federal Government in its sovereign capacity, the understanding since Murray’s Lessee. However, to accommodate Crowell v. Benson, Atlas Roofing, and similar cases, seemingly private causes of action between private parties will also be deemed “public” rights, when Congress, acting for a valid legislative purpose pursuant to its Article I powers, fashions a cause of action that is analogous to a common–law claim and so closely integrates it into a public regulatory scheme that it becomes a matter appropriate for agency resolution with limited involvement by the Article III judiciary.78 Nonetheless, despite its fixing by Congress as a “core proceeding” suitable for an Article I bankruptcy court adjudication, the Court held the particular cause of ac[p.610]tion at issue was a private issue as to which the parties were entitled to a civil jury trial (and necessarily which Congress could not commit to an Article I tribunal, save perhaps through the consent of the parties).79

Constitutional Status of the Court of Claims and the Courts of Customs and Patent Appeals.—Though the Supreme Court for a long while accepted the Court of Claims as an Article III court,80 it later ruled that court to be an Article I court and its judges without constitutional protection of tenure and salary.81 Then, in the 1950s, Congress statutorily declared that the Court of Claims, the Customs Court, and the Court of Customs and Patent Appeals were Article III courts,82 a questionable act under the standards the Court had utilized to determine whether courts were legislative or constitutional.83 But in Glidden Co. v. Zdanok,84 five of seven participating Justices united to find that indeed the Court of Claims and the Court of Customs and Patent Appeals, at least, were constitutional courts and their judges eligible to participate in judicial business in other constitutional courts. Three Justices would have overruled Bakelite and Williams and would have held that the courts in question were constitutional courts.85 Whether a court is an Article III tribunal depends largely upon whether legislation establishing it is in harmony with the limitations of that Article, specifically, “whether . . . its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite.” When[p.611]a court is created “to carry into effect [federal] powers . . . over subject matter . . . and not over localities,” a presumption arises that the status of such a tribunal is constitutional rather than legislative.86 The other four Justices expressly declared that Bakelite and Williams should not be overruled,87 but two of them thought the two courts had attained constitutional status by virtue of the clear manifestation of congressional intent expressed in the legislation.88 Two Justices maintained that both courts remained legislative tribunals.89 While the result is clear, no standard for pronouncing a court legislative rather than constitutional has obtained the adherence of a majority of the Court.90


62 18 How. (59 U.S.) 272 (1856).
63 Id., 284.
64 Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929).
65 Gordon v. United States, 117 U.S. 697 (1864); McElrath v. United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 553 (1933). On the status of the then–existing Court of Claims, see Glidden Co. v. Zdanok, 370 U.S. 530 (1962).
66 United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims).
67 Wallace v. Adams. 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court).
68 Old Colony Trust Co. v. CIR, 279 U.S. 716 (1929); Ex Parte Bakelite Corp., 279 U.S. 438 (1929).
69 See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military courts may, on the other hand, be a separate entity of the military having no connection to Article III. Dynes v. Hoover, 20 How. (61 U.S.) 65, 79 (1857).
70 285 U.S. 22 (1932).
71 Id. 51. On the constitutional problems of assignment to an administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937).
72 Id., 51–65.
73 Id., 50, 51, 58–63. Thus, Article III concerns were satisfied by a review of the agency fact finding upon the administrative record. Id., 63–65. The plurality opinion denied the validity of this approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n. 39 (1982), although Justice white in dissent accepted it. Id., 115. The plurality, rather, rationalized Crowell and subsequent cases on an analysis seeking to ascertain whether agencies or Article I tribunals were “adjuncts” of Article III courts, that is, whether Article III courts were sufficiently in charge to protect constitutional values. Id., 76–87.
74 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67–70 (1982) (plurality opinion). Thus, Justice Brennan states that at a minimum a matter of public right must arise “‘between the government and others”’ but that the presence of the United States as a proper party to the proceeding is a necessary but not sufficient means to distinguish “private rights.” Id., 69 & n. 23. Crowell v. Benson, however, remained an embarrassing presence.
75 Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985); CFTC v. Schor, 478 U.S. 833 (1986). The cases also abandoned the principle that the Federal Government must be a party for the case to fall into the “public rights” category. Thomas, supra, 586; and see id., 596–599 (Justice Brennan concurring).
76 “In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi–judicial method of resolving matters that ‘could be conclusively determined by the Executive and Legislative Branches,’ the danger of encroaching on the judicial powers is reduced.” Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline, supra, 458 U.S., 68 (plurality opinion)).
77 Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51–55 (1989). A seventh Amendment jury–trial case, the decision is critical to the Article III issue as well, because, as the Court makes clear what was implicit before, whether Congress can submit a legal issue to an Article I tribunal and whether it can dispense with a civil jury on that legal issue must be answered by the same analysis. Id., 52–53.
78 Id., 52–54. The Court reiterated that the Government need not be a party as a prerequisite to a matter being of “public right.” Id., 54. Concurring, Justice Scalia argued that public rights historically were and should remain only those matters to which the Federal Government is a party. Id, 65.
79 Id., 55–64. The Court reserved the question whether, a jury trial being required, a non–Article III bankruptcy judge could oversee such a jury trial. Id., 64. That question remains unresolved, both as a matter, first, of whether there is statutory authorization for bankruptcy judges to conduct jury trials, and, second, if there is, whether they may constitutionally do so. E.g., In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir. 1990), cert. granted, 497 U.S. 1023, vacated and remanded for consideration of a jurisdictional issue, 498 U.S. 964 (1990), reinstated, 924 F.2d 36 (2d Cir.), cert. den., 500 U.S. 928 (1991); In re Grabill Corp., 967 F.2d 1152 (7th Cir. 1991), pet. for reh. en banc den., 976 F.2d 1126 (7th Cir. 1992).
80 De Groot v. United States, 5 Wall. (72 U.S.) 419 (1866); United States v. Union Pacific Co., 98 U.S. 569, 603 (1878); Miles v. Graham, 268 U.S. 501 (1925).
81 Williams v. United States, 289 U.S. 553 (1933); cf. Ex Parte Bakelite Corp., 279 U.S. 438, 450–455 (1929).
82 67 Stat. 226 , Sec. 1, 28 U.S.C. Sec. 171 (Court of Claims); 70 Stat. 532 . Sec. 1, 28 U.S.C. Sec. 251 (Customs Court); 72 Stat. 848 , Sec. 1, 28 U.S.C. Sec. 211 (Court of Customs and Patent Appeals).
83 In Ex parte Bakelite Corp., 279 U.S. 438. 459 (1929), Justice Van Devanter refused to give any weight to the fact that Congress had bestowed life tenure on the judges of the Court of Customs Appeals because that line of thought “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.”
84 370 U.S. 530 (1962).
85 Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices Harlan, Brennan, and Stewart).
86 Id., 548, 552.
87 Id., 585 (Justice Clark and Chief Justice Warren concurring); 589 (Justices Douglas and Black dissenting).
88 Id., 585 (Justice Clark and Chief Justice Warren).
89 Id., 589 (Justices Douglas and Black). The concurrence thought that the rationale of Bakelite and Williams was based on a significant advisory and reference business of the two courts, which the two Justices now thought insignificant, but what there was of it they thought nonjudicial and the courts should not entertain it. Justice Harlan left that question open. Id., 583.
90 Aside from doctrinal matters, in 1982, Congress created the United States Court of Appeals for the Federal Circuit, giving it, inter alia, the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals. 96 Stat. 25 , title 1, 28 U.S.C. Sec. 41 . At the same time Congress, created the United States Claims Court, now the United States Court of Federal Claims, as an Article I tribunal, with the trial jurisdiction of the old Court of Claims. 96 Stat. 26 , as amended, Sec. 902(a)(1), 106 Stat. 4516 , 28 U.S.C. §§ 171 –180.
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