CONGRESSIONAL POWER, PUBLIC RIGHTS, AND NON-ARTICLE III ADJUDICATION.

• Author: Golden, John M.

INTRODUCTION 1114 I. FRAMING THE ARTICLE III QUESTIONS 1121 A. Squaring Non-Article III Adjudication with Article III 1121 B. Scholarly Commentary 1123 II. HISTORICAL PRACTICE AND PRECEDENTS 1128 A. Late Eighteenth- and Nineteenth-Century Foundations 1128 1. Non-Article III Courts and Pre-Public-Rights Doctrine 1129 a. State Courts and the Judiciary Act of 1789 1129 b. Territorial Courts 1131 c. Military Courts 1134 d. The First Patent Board and Later Patent Office 1137 2. Murray's Lessee and the Birth of the Public-Rights Doctrine 1138 3. The Freedmen's Bureau 1142 B. Crowell and the Apotheosis of the Appellate Review Model 1145 C. The Modern Cases 1153 1. Bankruptcy and Private Rights Rediscovered 1154 2. Matters of Public Right Contested by Private Parties 1157 III. THE BREADTH AND LIMITS OF PUBLIC RIGHTS 1164 A. The Robustness of Public Rights 1164 1. Categories Commensurate with Congressional Power 1165 2. Congressional Choice and the Conservative Use of History 1168 3. The Possibility of Public/Private-Rights Hybrids 1169 4. Sensitivity to Remedies 1172 B. Public Rights and Article III Court Review 1177 CONCLUSION 1181 INTRODUCTION

Article III specifies that the federal "judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority," as well as "to Controversies to which the United States shall be a Party." (1) Nonetheless, for adjudication of a host of questions in noncriminal cases arising under federal law or to which the United States is a party, (2) the federal government employs thousands of officials who were not appointed by the President with the Senate's advice and consent and who do not enjoy the life tenure and salary protections of Article III judges. (3) A post-New Deal consensus generally tolerated such adjudicative delegations under an "appellate review" model in which the availability of appeal to an Article III court legitimized first-instance adjudications by non-Article III federal officials. (4) But that consensus has collapsed. (5) The constitutional basis of various forms of non-Article III adjudication is now questioned as part of a more general "attack on the national administrative state." (6) Answering the question of when non-Article III adjudicadon is permissible is fraught but also critical at a time when the reach of the national government's regulations, grants, and benefits is pervasive; administrative agencies' power to "legislate" is challenged by the rise of the major questions doctrine; (7) and Article III judicial nominations seem more fiercely contested than ever.

Unfortunately, Supreme Court decisions provide no clear answer." Indeed, the Court's precedents on this question have bedeviled courts and commentators at least since the 1932 decision in Crowell v. Benson. (9) Under the public-rights doctrine that Crowell reaffirmed, there must be substantial access to Article III courts in federal adjudication of matters of private right, matters described by Crowell as involving "the liability of one individual to another under the law as defined." (10) In contrast, Congress enjoys greater latitude to give non-Article III federal officials adjudicative authority in a trio of settings: military courts, territorial courts, and noncriminal cases involving "a matter of public rights."" But the Court has long provided uncertain and even inconsistent guidance on what constitutes a matter of public-right. More fundamentally, the Court has never offered a coherent rationale for why it comports with the Constitution (and particularly with Article III) for Congress to use non-Article III federal adjudicators without mandatory recourse to Article III courts in the trio of settings where they are allowed. (12)

This Article's account of the public-rights doctrine reveals common themes among these three seemingly disparate settings. Although we use the well-established term "public rights" doctrine to describe the subject matter, our account of the doctrine encompasses and unites all the situations in which non-Article III federal adjudication is permissible without party consent and without the non-Article III tribunal's being considered a mere adjunct to an Article III court: (13) military and territorial courts as well as matters of public right. We provide not only a descriptive account of the doctrine that "fits" the cases and is rooted in constitutional text, original understandings, and historical practice, but also a normative View of Article III as consistent with broad room for administrative adjudication to enable effective national government. For a well-functioning national government, nonArticle III federal officials must in their day-to-day work--whether granting patents or benefits, allowing goods and persons into the country, collecting taxes, disciplining troops, or carrying out any of a multitude of other government operations--make final assessments of legal rights and obligations without compulsory resort to an Article III court. (14) Explicit assignments of congressional power in Article I, such as those to collect taxes, grant invention patents, and make rules and regulations for the armed forces, provide constitutional testimony to this practical reality.

Thus, the fundamental question is not whether the Constitution--and Article III in particular--permits Congress to assign adjudicatory authority to non-Article III federal officials. The Constitution must do this because adjudication is often a necessary incident of important missions the Constitution assigns to the political branches of the national government. On the other hand, there seem to be ways by which non-Article III federal adjudication could plainly encroach on Article III judicial power: for example, if Congress were to take away the Supreme Court's appellate jurisdiction in constitutional cases and give it to non-Article III federal officials enjoying one-year appointments only. (15) The fundamental question is thus one of line drawing. How is room for non-Article III adjudication constitutionally confined?

The public/private-rights distinction purports to aid in the necessary line drawing. But how does one distinguish between matters of private right and those of public right? To facilitate answers, we reorganize the categories of permissible areas for non-Article III federal adjudication to clarify the relationships between the territorial courts, courts-martial, and public-rights categories. Specifically, we contend that Article III generally permits Congress to commit noncriminal Article Ill-listed "Cases" and "Controversies" to final adjudication by a non-Article III federal officer or tribunal in three overlapping spheres of activity:

1. The case or controversy occurs in a physical space beyond the states' control and thus does not implicate concerns about eroding preexisting state decisional primacy over matters of private right."' Key examples are territorial courts, the District of Columbia courts (and justices of the peace), military courts in foreign or occupied territories, and administrative bodies that adjudicate entry into the United States of foreign goods and persons.

2. The case or controversy occurs in the operational spare of the federal government. A case within this space may feature a challenge to how the federal government manages its internal affairs or to how the government implements an Article I power to confer a right or benefit, such as a land grant or a monetary award. (17) Explicit constitutional grants of legislative or executive power that logically entail adjudication highlight core cases in the federal government's operational space. Key examples include courts-martial, the accounting of a customs collector's tariff receipts, and grants of patent rights. (18) The federal government's operational space also generally encompasses--and thereby explains--the jurisdiction of the Court of Federal Claims. (19) Some forms of non-Article III adjudication of immigration and revenue matters fall within both this operational space category and the beyond-state-control physical space category.

3. The case or controversy involves a claim against one or more private parties within the public-interest-focused enforcement space of a federal statutory scheme, such as one regulating labor-management relations or requiring commercial pesticide registration. This third category is the most difficult to define and the most contested. It is adjacent to, and overlaps partly with, the operational space of internal affairs and direct government grants. (20) But the enforcement space category has a distinctly more outward-extending nature: this category includes claims of liability against individuals who are not government employees or who might not even be recipients of, or applicants for, relevant government giants. Noncriminal enforcement actions brought by the government commonly fall within this federal enforcement space, but we doubt that the government's appearance as a formal party should always suffice. (21) Conversely, as in Thomas v. Union Carbide Agricultural Products Co., (22) a case between private parties over an alleged liability created wholly by a federal regulatory scheme may fall within the enforcement space even though the federal government is not involved as a party. (23) The less a matter seems a creature of federal statutory law and, separately, the more the matter's resolution generates personalized relief for a specific private party at another specific private party's expense, the greater the chance that non--Article III federal adjudication exceeds the proper bounds of this enforcement space.

   To fully understand the contents and limits of the above three categories, it helps to consider a definition of matters of private right. In a prior article, we traced what might be called the "private-rights doctrine"--the...