Article I tribunals, Article III courts, and the judicial power of the United States

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. In particular, he contends that Congress may constitute inferior tribunals to hear matters that it has structured to fall outside the judicial power of the United States under Article III. Such non-Article III matters have traditionally included a range of familiar proceedings: public rights claims (because the lack of finality precluded judicial involvement); court-martial proceedings (which were assigned to the military for handling outside Article III); and local matters before territorial courts (matters understood to require rules of law different from those that Article HI courts were expected to enforce). Professor Pfander further suggests that the constitutional basis for Article I tribunals requires that the tribunals remain inferior to the judicial department of the United States. This inferiority requirement draws support not only from the text of Article I, but also from an institutional history that features widespread judicial oversight of Article I adjudication. The judicial department has preserved the inferiority of Article I tribunals with a variety of tools, including habeas corpus, mandamus, and officer suit litigation. While the inferior tribunals account does not demand appellate review in every case, it does secure the Supreme Court's role as the final arbiter of the legality of adjudication before Article I tribunals.