prev | next
ArtIII.S1.9.1 Overview of Congressional Power to Establish Non-Article III Courts

Article III, Section 1:

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 Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Article III of the Constitution provides that “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.” 1 A literal interpretation of that language might require that every case that falls within the “judicial Power of the United States” must be adjudicated, if at all, in Article III courts staffed by judges with constitutional protections.2 Notwithstanding the foregoing text, however, Congress has assigned the authority to adjudicate a large swath of cases that would seemingly fall within the federal judicial power to non-Article III tribunals—forums with judicial officers who do not enjoy Article III protections. Those tribunals are often called “Article I courts” or “legislative courts,” because they are created by Congress pursuant to its general legislative powers. They include specialized stand-alone courts, administrative agencies, and magistrate judges who serve under Article III judges.

Congress has periodically created Article I courts since the early years of the Republic.3 Over the years, the Supreme Court has recognized certain limits on which matters may be heard by Article I courts instead of Article III courts. The case law in this area can be difficult to parse,4 but generally identifies four key circumstances in which Congress may authorize non-Article III courts to hear cases: (1) District of Columbia and territorial courts,5 (2) military courts,6 (3) courts hearing cases involving “public rights,” which often arise between the government and private parties,7 and (4) adjuncts to Article III courts.8 Additionally, in some instances, non-Article III courts can hear certain matters based on the consent of the litigants.9 The following essays first discuss Congress’s authority to structure non-Article III courts and the Supreme Court’s power to review such courts’ decisions.10 They then survey Supreme Court case law considering the different types of cases that may proceed in Article I courts.

U.S. Const. art III, § 1. back
Article III judges hold their jobs during good behavior, a provision that has been interpreted to grant judges life tenure unless they resign voluntarily or are impeached. See ArtIII.S1.10.2.1 Overview of Good Behavior Clause. Article III judges also may not have their compensation reduced while on the bench. See ArtIII.S1.10.3.1 Historical Background on Compensation Clause. In addition, Article III judges must be appointed by the President with the advice and consent of the Senate. See ArtII.S2.C2.3.5 Appointments of Justices to the Supreme Court. For discussion of Congress’s authority to establish Article III courts, see ArtIII.S1.8.1 Overview of Establishment of Article III Courts. back
See, e.g., Act of September 29, 1789, ch. 24, 1 Stat. 95 (authorizing the executive branch to resolve disputes concerning military pensions); Act of September 1, 1789, ch. 11, 1 Stat. 55 (same for federal customs laws); Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828) (upholding grant of admiralty jurisdiction to Florida territorial court). back
See, e.g., N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 91 (1982) (Rehnquist, J., concurring) (suggesting that another member of the panel believed the Court’s cases on Article I courts to be “landmarks on a judicial ‘darkling plain’ where ignorant armies have clashed by night” ). back
See ArtIII.S1.9.4 District of Columbia and Territorial Courts. back
See ArtIII.S1.9.5 Non-Article III Military Courts. back
See ArtIII.S1.9.6 Legislative Courts Adjudicating Public Rights. back
See ArtIII.S1.9.7 Article I Adjuncts to Article III Courts. back
See ArtIII.S1.9.9 Consent to Article I Court Jurisdiction. back
See ArtIII.S1.9.2 Congressional Power to Structure Legislative Courts. back