Article III in the Political Branches

ABSTRACT In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of this provision, leaving the legislative and executive branches largely on their own in defining the scope of the "exceptions power." The debates over this provision shed light not only on how the political branches have construed Article III but also on how the political branches approach constitutional interpretation more generally. This Essay concludes by raising questions about whether, or the extent to which, the practices and constitutional interpretations of the political branches should inform the way in which the judiciary interprets Article III. INTRODUCTION Many separation of powers questions--such as the scope of the war or treaty powers--rarely, if ever, reach the judiciary. Accordingly, those questions must of necessity be answered by the political branches. For this reason, scholars often excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the meaning of constitutional provisions. Indeed, "[arguments based on [such] historical practice are a mainstay of debates about the constitutional separation of powers." (1) There is, however, far less focus on political branch practice in Article III scholarship. In this Essay, building on prior work, (2) I seek to raise questions about this Article III exceptionalism. I suggest that there are good reasons for scholars to consider the work of the legislature and the executive branch in analyzing Article III issues. As in other separation of powers arenas, many important questions arising under Article III have rarely, if ever, reached the judiciary and have instead been addressed by the political branches. (3) For example, the Supreme Court has said very little about Congress's power to make "exceptions" and "regulations" to the Court's appellate jurisdiction. (4) Thus, the political branches have largely been on their own in defining the scope of the "exceptions power." Scholarly study of legislative and executive interpretations of Article III is important for two major reasons. First, such practices are likely to inform future executive and legislative debates. As described below, political actors often look at their own precedents in evaluating the constitutionality and propriety of jurisdictional proposals. Second, such scholarly study can provide insight into the way that the political branches approach constitutional interpretation. I do not, however, assert that federal courts should necessarily treat political branch practice as authoritative evidence of the meaning of Article III, if and when similar issues reach the courts. In fact, I suggest that there are reasons for the judiciary to be cautious about relying heavily on the work product of political actors. The political branches may approach the process of constitutional interpretation in a way that differs considerably from what a judge deems appropriate. Moreover, it may be difficult for judges to discern whether a measure was enacted or rejected for constitutional, as opposed to policy, reasons. In sum, I suggest that the political branches and the judiciary may engage in distinct enterprises when they interpret the scope of Article III (and perhaps other constitutional provisions as well). The Essay proceeds as follows. Part I focuses on the Exceptions Clause, providing a survey of executive and legislative practice with respect to that clause. …