Power of Congress Over Legislative Courts.

In creating leg- islative 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; it may subject the judges of legislative courts to removal by the President;58 and it may reduce their salaries during their terms.59 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,60 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,61 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,” the Court 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.”62


McAllister v. United States, 141 U.S. 174 (1891). [Back to text]
United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289 U.S. 553 (1933). [Back to text]
69 U.S. (2 Wall.) 561 (1864). [Back to text]
54 U.S. (13 How.) 40 (1852). [Back to text]
54 U.S. at 48. [Back to text]