Article 3, Section 1 — Legislative Courts Adjudicating Public Rights

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Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Supreme Court has held that Article I courts can adjudicate cases involving “public rights” —cases that arise between a private actor and the government. The public rights theory can be traced back to the Court’s 1855 ruling in Murray’s Lessee v. Hoboken Land & Improvement Co.[1](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn1art3 " 59 U.S. (18 How.) 272 (1855). ") In that case, Justice Joseph Story explained that, although Congress cannot withdraw from federal courts the jurisdiction to hear suits at common law, equity, or admiralty, “there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” [2](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn2art3 " Id. at 284. ") In essence, the Court distinguished between matters that historically had been decided by courts and matters that arose between the government and others and had been historically resolved by executive or legislative acts. Thus, under Murray’s Lessee, certain matters arising between the government and others that might be susceptible to judicial determination may also be referred to Article I courts. Congress does not have sole discretion to determine what matters fall within that class. In subsequent cases, the Court has held that matters susceptible of judicial determination, but not requiring it, include claims against the United States;[3](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn3art3 " Gordon v. United States, 117 U.S. 697 (1865) (published 1885); McElrath v. United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 553 (1933). On the status of the then-existing Court of Claims, see Glidden Co. v. Zdanok, 370 U.S. 530 (1962). ") the disposal of public lands and claims arising therefrom;[4](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn4art3 " United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims). ") questions concerning membership in Indian tribes;[5](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn5art3 " Wallace v. Adams, 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court). ") and questions arising out of the administration of the customs and internal revenue laws.[6](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn6art3 " Old Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929); Ex parte Bakelite Corp., 279 U.S. 438 (1929). ") Courts such as consular courts and military courts martial may be justified on similar grounds.[7](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn7art3 " See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military courts may, on the other hand, be a separate entity of the military having no connection to Article III. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1858). But cf. Ortiz v. United States, 138 S. Ct. 2165, 2168 (2018) (noting that the essential character of the military justice system is, “in a word, judicial” ). For additional discussion of military courts, see . ")

The Supreme Court has offered several rationales for why public rights cases can be handled in Article I courts. The first is based on the doctrine of sovereign immunity and postulates that, because Congress need not allow suits against the government at all, the legislature is free to attach conditions to the federal government being sued, including what type of forum the claims can be brought in.[8](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn8art3 " N. Pipeline Constr. Co v. Marathon Pipe Line Co., 458 U.S. 50, 67 (1981) ") The second major rationale is that, historically, these cases were conclusively determined by the Executive and Legislative Branches, “and that as a result there can be no constitutional objection to Congress’s employing the less drastic expedient of committing their determination to a legislative court or an administrative agency.” [9](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn9art3 " Ex Parte Bakelite, 279 U.S. 438, 451 (1929) ( “The mode of determining [public rights cases] . . . is completely within congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals.” ). Although Congress has generally employed some level of judicial review for public rights cases, it is generally accepted that this is not constitutionally required. See id. at 451; N. Pipeline, 458 U.S. at 68 n.20; Crowell v. Benson, 285 U.S. 22, 50–51 (1932). ")

As a general matter, the Court has broadly defined public rights cases as those that arise “between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” [10](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn10art3 " Crowell, 285 U.S. at 50. ") At the core of the public rights doctrine are cases involving claims for benefits against the government.[11](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn11art3 " For example, the U.S. Tax Court is an Article I court that resolves disputes between taxpayers and the government. Although judges of the Tax Court exercise the “judicial power” of the United States, its judges do not enjoy life tenure, but rather sit for fifteen-year terms. And, unlike Article III judges who are subject to removal only through impeachment, Tax Court judges can be removed by the President for “inefficiency, neglect of duty, or malfeasance in office[.]” 26 U.S.C. §§ 7441–7443. ") Private rights cases, by contrast, pertain to the “liability of one individual to another under the law as defined.” [12](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn12art3 " Crowell, 285 U.S. at 51. ") Beyond these general definitions, the Supreme Court has not articulated the exact parameters of the public rights doctrine. As Chief Justice John Roberts has noted, “our discussion of the public rights exception . . . has not been entirely consistent, and the exception has been the subject of some debate.” [13](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn13art3 " Stern v. Marshall, 131 S. Ct. 2594, 2611 (2011). ") However, a series of Supreme Court cases have attempted to draw the line between public and private rights.

In 1932, in Crowell v. Benson, the Court approved an administrative scheme for evaluating maritime employee compensation claims, subject to judicial review, although the case involved a matter of private right.[14](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn14art3 " 285 U.S. 22. ") The scheme was permissible, the Court said, because in cases arising out of congressional statutes, an administrative tribunal could make findings of fact and render an initial decision on legal and constitutional questions, as long as there was adequate review in a constitutional court.[15](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn15art3 " Id. at 51–65. ") The “essential attributes” of decisions must remain in an Article III court, but so long as they do, Congress may use administrative decisionmakers in those private rights cases that arise in the context of a comprehensive federal statutory scheme.[16](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn16art3 " Id. at 50, 51, 58–63. For additional discussion of Crowell, see . ")

In the 1982 case Northern Pipeline Const. Co. v. Marathon Pipeline Co., the Court addressed whether Article I bankruptcy courts could adjudicate common law contract and tort claims.[17](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn17art3 " 458 U.S. 50 (1981). ") Acknowledging that the “distinction between public and private rights has not been definitely explained” in the Court’s precedents, Justice William J. Brennan, writing for a plurality of the Court, traced three historical exceptions to the literal command of Article III: territorial courts, military courts, and courts and agencies that adjudicate public rights.[18](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn18art3 " Id. at 69–70. ") Disposing of the first two categories as clearly inapplicable, the plurality also rejected the public rights argument as the underlying case did not arise between government and a private party, but involved a state-created claim between two private parties.[19](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn19art3 " Id. at 71 ")

In two cases following Northern Pipeline, the Court rejected a bright line test for the distinction between public and private rights. It instead focused on substance—that is, on the extent to which a particular grant of jurisdiction to an Article I court threatened judicial integrity and separation of powers principles. First, in Thomas v. Union Carbide Agricultural Products Co., the Court adopted a functional approach for determining when Congress may use non-Article III forums.[20](https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights#fn20art3 " 473 U.S. 568 (1984). ") The statute in question created a system of binding arbitration, subject to limited judicial review, for determining the amount of compensation due to pesticide manufacturers whose data had been used by other manufacturers to register t