Article I Tribunals, Article III Courts, and the Judicial Power of the United States

TABLE OF CONTENTS INTRODUCTION I. LEADING ACCOUNTS OF ARTICLE III A. Problems with the Literal Account 1. Legislative Courts 2. Administrative Agencies 3. Executive Branch Administration of Laws B. The Court's Alternatives to Article III Literalism 1. Holding the Line with Categorical Constraints 2. Balancing Article III Values C. Scholarly Alternatives to Article III Literalism II. THE TEXTUAL FOUNDATION OF AN INFERIOR TRIBUNALS ACCOUNT A. Distinguishing Inferior Tribunals from Inferior Courts 1. Textual and Structural Support 2. Support in the Drafting History 3. Early Implementation B. Inferiority in Relation to a Unitary Supreme Court III. THE ELEMENTS OF AN INFERIOR TRIBUNALS ACCOUNT: LESSONS FROM INSTITUTIONAL HISTORY A. Inferior Tribunals for Matters Outside the Judicial Power 1. The Finality Principle (a) Finality and Public Benefit Claims (b) Finality and Advisory Opinions 2. Territorial Courts and the Absence of Federal Rights 3. The Traditional Boundaries Principle (a) Court-Martial Proceedings (b) Small Claims, Bankruptcy, and Mixed Functions B. Preserving the Inferiority of Article I Tribunals 1. Direct Appellate Review 2. Supervisory Power and the Common Law Writs 3. Common Law Collateral Attacks on Inferior Tribunals C. Murray's Lessee, Public Rights, and the Limits of Congressional Power 1. Murray's Lessee and Public Rights 2. The Curious Focus on Issues of State Law D. Public Benefits, Private Rights, and Administrative Agencies E. The Scope of Review Required by the Principle of Inferiority IV. APPLYING THE INFERIOR TRIBUNALS ACCOUNT A. Testing the Inferiority of Familiar Article I Tribunals 1. Territorial Courts 2. Courts-Martial 3. Military Commissions 4. Public Rights, Sovereign Immunity, and the Court of Federal Claims 5. Article I Judges in Article III Courts 6. Magistrate Judges 7. NAFTA and the Use of International Panels To Arbitrate Trade Disputes B. Applying the Inferiority Principle to Leading Cases 1. Northern Pipeline 2. CFTC v. Schor 3. Thomas v. Union Carbide 4. Article I Appellate Review CONCLUSION We lack an entirely convincing account of the scope of Congress's power under the Constitution to create Article I tribunals and invest them with authority to adjudicate disputes that seemingly come within the scope of Article III. The literal terms of Article III appear to rule out reliance upon Article I tribunals altogether; Article III vests the judicial power of the United States in federal courts whose judges enjoy salary and tenure protections that were designed to ensure judicial independence in a scheme of separated powers. Yet Article I tribunals have grown up and flourished throughout the nation's history. This institutional history of Article I adjudication demonstrates the need for an alternative to literalism, but none of the competitors resolves the problem. The balancing test currently preferred by the Supreme Court acknowledges some role for Article I tribunals but fails to provide clear guidelines as to when Congress may sidestep Article III. A more promising academic theory--the appellate review account--emphasizes the need for appellate review in constitutional courts as the key to legitimate Article I adjudication. While this theory offers greater coherence, it does not fit especially well with some features of our institutional history and it would seemingly authorize some arrangements that depart dramatically from current law. Professor Pfander develops a new "inferior tribunals" account. Building on the constitutional distinction between "inferior tribunals" (in Article I) and "inferior courts" (in Article III), he suggests a new textual foundation for Article I tribunals. …