Federal Courts Article 133 Harv. L. Rev. 1511

Adjudication Outside Article III


Article III requires federal judges who exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress’s ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III — state courts, most obviously, but also territorial courts, administrative adjudication of public rights, and military tribunals. The question is why.
This Article attempts to provide an answer. It argues that it is a mistake to focus on the act of adjudication itself; adversary presentation about the application of law to fact is simply a procedure, and not a procedure uniquely limited to Article III courts. Instead, the constitutional question is one of government power. What kind of power has the tribunal been vested with, and what is it trying to do with that power?
With this framework in view, the structure and scope of non–Article III adjudication becomes clearer. Some courts exercise the judicial power of some other government. This is why territorial courts and state courts are constitutional. Some bodies exercise executive power, subject to the constraints reflected by the Due Process Clause. This is why administrative adjudication of public rights and military trials are constitutional. Some exercise no governmental power and can proceed only as an adjunct to another entity or on the basis of consent. This is the only basis on which magistrate judges and bankruptcy judges can proceed and may render some of their current behavior unconstitutional.


It is not always necessary to return to first principles, but when one is lost, sometimes it can be helpful to consult the map. The text of Article III seems to provide a simple account of who can exercise federal judicial power. But longstanding practice, sometimes reaching all the way back to the Founding, seems inconsistent with that account. And the internal logic of this longstanding practice is itself obscure and mysterious. The resulting confusion makes it hard to tell what forms of adjudication should be lawful or how those adjudicative bodies should function. When it comes to the doctrine of so-called legislative courts, we are lost.

This Article is a map back to civilization. Contrary to widespread assumption, Article III’s vesting of the judicial power is not about the process of adjudication. Rather, it refers to the substance of judicial power (which is the power to bind parties and to authorize the deprivation of private rights) and more specifically to the judicial power “of the United States” (rather than that of other governments). With Article III’s judicial power properly in view, we can see that the longest standing examples of adjudication outside Article III are generally consistent with the text and structure of the Constitution. It also allows us to tell what newer categories of non–Article III adjudication are permissible, and why. And it shows which of them are in fact “courts” in the constitutional sense and which ones are not, providing answers to many of the structural and procedural questions about how those so-called legislative courts should operate.

Part I discusses the apparent inconsistency between Article III’s text and practice. Part II resolves the inconsistency, locating the traditional forms of non–Article III adjudication in constitutional structure. Part III discusses the implications of this framework for the substance and structure of other forms of adjudication outside Article III.

* Professor of Law and Aaron Director Research Scholar, University of Chicago Law School. Thanks to Greg Ablavsky, Jud Campbell, Nathan Chapman, Jamie Durling, Jack Goldsmith, Tara Grove, Philip Hamburger, Jeff Hetzel, Aziz Huq, Michael McConnell, Zach Price, Richard Re, Stephen Sachs, Geoff Sigalet, Lance Sorensen, Mark Storslee, David Strauss, Amanda Tyler, Chas Tyler, Eric Zoldan, and workshop participants at UC Hastings College of the Law, The University of Chicago Law School, Berkeley Law School, and the Stanford Constitutional Law Center for helpful comments, and Sean Frazzette, Natalie Peelish, Martin Salvucci, and Sarah Welch for tireless and indispensable research assistance.