Skip to main content
Unpublished Paper
LIMITING LEGISLATIVE COURTS: PROTECTING ARTICLE III FROM CONGRESSIONAL EVISCERATION
ExpressO (2010)
  • Kenneth G. Coffin
Abstract
As with the notion of a unitary executive or a limited commerce clause, hope for a single federal judiciary has fallen by the wayside. Since 1828, the Supreme Court has recognized a separate class of “legislative courts.” Judges of these legislative, or Article I, courts fall outside the guarantees of Article III. Congress may therefore provide for limited terms of office, disparate methods of appointment and reduction of salaries. Currently there are over 2,000 Article I judges, including Bankruptcy, Magistrate, and Administrative Law judges, just to name a few. In contrast, only 829 United States judges can claim Article III protection. In a nation partially founded on a belief in judicial independence, the vast majority of federal judges operate without constitutional protection. Of equal importance, it is quite likely that the vast amount of Americans’ only contact with the federal judiciary will come before an Article I tribunal. This Article advocates adoption of a modified formalist separation of powers test for adjudicating the constitutionality of such legislative courts. Separation of powers doctrine presents a workable manner for deciding when a court must comport with the strictures of Article III. When a court actuates an executive or legislative function, the courts need not comply with Article III. If, however, a court simply adjudicates without any executive or legislative function, that court is solely exercising the judicial power of the United States and Article III governs. This line creates a relatively definitive test for Congress without either endangering the current administrative state or preventing Congressional flexibility. Moreover, despite its flexibility, separation of powers law does create a true limit on Congress’ power to create Article I courts, helping to ensure the continued potency and independence of the Article III judiciary.
Keywords
  • legislative courts,
  • article 3,
  • article 1,
  • bankruptcy appellate panels
Disciplines
Publication Date
August 2, 2010
Citation Information
Kenneth G. Coffin. "LIMITING LEGISLATIVE COURTS: PROTECTING ARTICLE III FROM CONGRESSIONAL EVISCERATION" ExpressO (2010)
Available at: http://works.bepress.com/kenneth_coffin/1/