Help
 Click Back button to return to Text Assist Click for list of Flowcharts You can use it, but you can't sell it
Text Assist for
The Legislative Courts Flowchart

The concept of "separation of powers" between each branch of government originated in Western Europe where, after the English Civil War, there was a continuous power struggle between the parliament and the monarchy. Eventually emerging from this clash was the delineation of functions between each branch of the English government.

As adopted by the United States, the dividing line between our three branches has gone through stages ranging from unclear wavering to unquestioned "brightness." For example, in Nixon v. Admin. of Gen. Serv., 433 U.S. 425 (1977), the Court rejected "the argument that the Constitution contemplates a complete division of authority between the branches," calling such an argument an "archaic view of the separation of powers." But, even during the unclear periods, Montesquieu's philosophy that the blending of powers between more than one branch of government would lead to a tyrannical system was always lurking in the background.

The United States system of legislative courts represents a blending of powers between the legislative, executive, and judicial branches, thus providing an interesting view into the concept of separation of powers.

In American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828), Chief Justice Marshall held that legislative courts were constitutional, contrasting such "legislative" courts (created by Article I and IV) with regular "constitutional" courts (created by Article III).

Click to the Modern Administrative State flow chart for more information.

Article I, Section 8
Article I, Section 8 of the United States Constitution lists the enumerated powers over which Congress may legislate, including the power to "constitute Tribunals inferior to the supreme Court." Courts created under this Congressional power are official "Article III courts" with judges enjoying all of the safeguards provided by Article III, including life tenure and secured salaries.

However, as you may know, well over half of the courts established by Congress do not contain the safeguards of Article III. Congress has created many "federal" courts, including those adjudicating issues of federal taxation, communication, and trade, by exercising its power under the enumerated powers of Article I, section 8 (including, for example, the "necessary and proper clause" found in Article I, sec. 8, para 18).

While it might seem unconstitutional for Congress to create courts that are technically "inferior" to the Supreme Court without providing them Article III protections, the Court has upheld these "legislative courts" or "Article I courts" since 1828. See American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828).

Exclusive Geographic Authority
The requirements of Article III must "give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment." Palmore v. United States, 411 U.S. 389, 407-08 (1973). The Court later interpreted this section of Justice White's Palmore decision to refer only to geographic areas and not areas of specialized subject matter. Northern Pipeline Construction co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

Exclusive Topical Authority
The requirements of Article III must "give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment." Palmore v. United States, 411 U.S. 389, 407-08 (1973).

Substantive Power
Congress may create and empower administrative agencies to decide matters which fall under the nine enumerated categories of cases and controversies provided in Article III. These "Article I courts" are essentially courts within individual federal agencies, such as the FCC, IRS, and NLRB. For example, Congress created the Occupational Safety & Health Review Commission and the Court upheld as constitutional the Commission's imposition of civil penalties. Atlas Roofing Co. v. Occup. Safety & Health Rev. Comm'n, 430 U.S. 442 (1977).

Since 1913, Congress has resisted significant pressure to create new courts with specialized subject matter jurisdiction. See 13 Wright, Miller and Cooper, Jurisdiction 2d, Section 3508.

District of Columbia (Art. I, sec. 8, para. 17) & Territories (Art. IV, sec. 3, para. 2)
District of Columbia Article I, section 8, paragraph 17 grants Congress the power to "exercise exclusive Legislation in all cases whatsoever, over such District (not exceeding ten Miles square) as may...become the Seat of the Government of the United States..." This Constitutional provision allows Congress control over "the seat of the Government of the United States," the District of Columbia.

As a result of the 1970 reorganization of the court system in the District of Columbia, local matters are now heard by local legislative courts (the District of Columbia Superior Court) and cases falling under federal jurisdiction are heard by Article III courts (the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia Circuit).

The use of legislative courts in the District of Columbia was held to be Constitutional in Palmore v. United States, 411 U.S. 389 (1973) wherein the defendant challenged the ability of an "Article I" court (the District of Columbia Superior Court) to decide his case which was based on "federal" law. The Court held that "the requirements of Article III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment"

Territories Article IV, section 3, paragraph 2 provides that "Congress shall have the power to dispose of and make all needful Rules and regulations respecting the Territory or other Property belonging to the United States..." By this provision, Congress has control over the territories of the United States. In the territories of Guam, the Virgin Islands, the Canal Zone, the Northern Mariana Islands, and Samoa, there exists a dual jurisdictional court system. In these territories, the courts have not only federal jurisdiction, but also a general jurisdiction similar to that enjoyed by a state court. Puerto Rico is set up a bit differently. The District Court for the District of Puerto Rico is statutorily defined as a "court of the United States" and its jurisdiction is the same as regular district courts.

In American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828), Chief Justice Marshall held that territorial courts were constitutional, contrasting such "legislative" courts (created by Article I and IV) with regular "constitutional" courts (created by Article III). The Court found that the plenary Congressional power over the territories (in Article IV) was enough to justify Congress' creation of non-Article III courts in the territories.

Military (Art. I, sec. 8, para. 16)
Article I, section 8, paragraph 16 grants Congress the power to "provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress"

Commerce (art. I, sec. 8, para. 3) [or any other enumerated power]
Article I, section 8 The Commerce Clause (Article I, section 8, paragraph 3) grants Congress the power to "regulate Commerce...among the several States..."

"or any other enumerated power" Article I, section 8 contains many Congressional enumerated powers, which may provide power to Congress to create a legislative court.

Bankruptcy (Art. I, sec. 8, para 4), Magistrates, etc.
Article I, section 8, paragraph 4 grants Congress the power to "establish...uniform Laws on the subject of Bankruptcies throughout the United States."

In order to perform this function, it is "necessary and proper" for Congress to establish many federal bankruptcy courts (which are not Article III courts). Some of the reasons Congress may have chosen to withhold Article III status from Bankruptcy courts and Magistrates are: Creation of the Magistrates The United States Magistrates were created by the Federal Magistrates Act of 1968. The Act enables district courts to assign magistrates "such additional duties as are not inconsistent with the Constitution and the laws of the United States." 28 U.S.C. Section 636(a) and (b). Since their creation, the role of magistrates has been expanded several times (See 28 U.S.C. Section 636) and in 1990, these officers were given the new title of "United States magistrate judges." Act of Dec. 1, 1990, Pub.L. 101-650, section 321, 104 Stat. 5117.

Same as state courts


Jurisdiction over military personnel (in actual service) for both service and non-service related matters
The Court of Military Appeals is a military tribunal created pursuant to Article I power to make rules for the government and to regulate land and naval forces. This legislative court is independent of the federal judiciary system.

Public rights
Adjudication by administrative agencies is deemed Constitutional under the public rights doctrine. In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court defined public rights matters as those between the government and private citizens regarding a right granted by the government. The public rights doctrine does not extend to a case involving the liability of one individual to another (which was the case in Northern Pipeline.) The Northern Pipeline plurality justified the legislative courts' ability to hear public rights cases by reasoning that since Congress did not have to create the right in the first place, it may be allowed to place conditions on its method of enforcement.

Private rights
A private right matter is one involving the liability of one individual to another. Private rights contrast with public rights which involve in which a private citizen sues the government regarding a right granted by the government.

In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court held that private rights (suits between private individuals on a state law claim) were inherently judicial and therefore could not be adjudicated by the bankruptcy courts because those courts lacked the Article III protections.

preliminary
The United States Magistrates were created by the Federal Magistrates Act of 1968. The Act enables district courts to assign magistrates "such additional duties as are not inconsistent with the Constitution and the laws of the United States." 28 U.S.C. Section 636(a) and (b). Since their creation, the role of magistrates has been expanded several times (See 28 U.S.C. Section 636) and in 1990, these officers were given the new title of "United States magistrate judges." Act of Dec. 1, 1990, Pub.L. 101-650, section 321, 104 Stat. 5117.

In 1984, the Bankruptcy Act made bankruptcy courts elements of the district courts. Under this framework, the bankruptcy judges have jurisdiction over all "core" bankruptcy matters. Decisions over all "plenary" matters, such as state-based contract and tort claims, type text here are to be made only by the federal district court judges.

Congress has general (vs. limited) authority; no federalism problems
Because Congress has plenary power over the District of Columbia and the territories of the United States, there is no federalism issue. It is impossible for the federal government to "take away" power away from the states if the states had no power over the areas to begin with.

National security need for discipline and command order
Such widespread control over the military may gain justification if you look at Article I, section 8. Notice that out of the first 17 paragraphs, 6 deal directly with the military and (others effect the military indirectly). Such a thorough Constitutional grant of power justifies the allocation of power to Congress to create tribunals in which matters relating to military personnel may be adjudicated.

In creating the right, Congress can specify how and where it is enforced; Separation of powers; Sovereign immunity
The Northern Pipeline plurality justified the legislative courts' ability to hear public rights cases by reasoning that since Congress did not have to create the right in the first place, it may be allowed to place conditions on its method of enforcement.

Separation of powers issues arise each time Congress creates a new agency because such creation reduces the authority and jurisdiction of the judiciary.



Does Art. I trial of an "inherently judicial matter" undermine Art. III independence
The Court held in Crowell v. Benson, 285 U.S. 22 (1922) that Constitutional issues must be decided by a court independent of the political branches of the federal government. Such case could therefore be "safely" heard in either a federal Article III court or a state court.

In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court held that private rights (suits between private individuals on a state law claim) were inherently judicial and therefore could not be adjudicated by the bankruptcy courts because those courts lacked the Article III protections. In Ex parte Bakelite Corp., 279 U.S. 438 (1929), the court held that the Court of Customs Appeals was a legislative court because its jurisdiction included "nothing which inherently or necessarily requires judicial determination, but only matters the determination of which may be, and at times has been, committed exclusively to the executive officers." (The court was later declared a "constitutional" Article III court in Gliddon Co. v. Zdanok, 370 U.S. 530 (1972), and eventually it was merged with the Court of Claims to create the United States Court of Appeals for the Federal Circuit as well as a trial forum, the United states claims Court).

"Adjunct" courts
In 1984, the Bankruptcy Act made bankruptcy courts elements of the district courts. Under this framework, the bankruptcy judges have jurisdiction over all "core" bankruptcy matters. Decisions over all "plenary" matters, such as state-based contract and tort claims, type text here are to be made only by the federal district court judges.

Fully enforceable
District of Columbia Courts The use of legislative courts in the District of Columbia was held to be Constitutional in Palmore v. United States, 411 U.S. 389 (1973) wherein the defendant challenged the ability of an "Article I" court (the District of Columbia Superior Court) to decide his case which was based on "federal" law. The Court held that "the requirements of Article III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment"

Territorial Courts In American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511 (1828), Chief Justice Marshall held that territorial courts were constitutional, contrasting such "legislative" courts (created by Article I and IV) with regular "constitutional" courts (created by Article III). The Court found that the plenary Congressional power over the territories (in Article IV) was enough to justify Congress' creation of non-Article III courts in the territories.

Fully enforceable
The requirements of Article III must "give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment." Palmore v. United States, 411 U.S. 389, 407-08 (1973).


Orders are usually enforceable
In Atlas Roofing Co. v. Occup. Safety & Health Rev. Comm'n, 430 U.S. 442 (1977), the Court held that the use of administrative tribunals to resolve disputes was not a violation of a defendant's Seventh Amendment right to a jury trial in a civil case.

Many agencies, rather than espousing broad-based general rules, decide cases on a case-by-case basis. Such a system might seem overwhelming and inefficient, but it is feasible because each decision has stare decisis effect. As a result, these Article I courts create an entire "sub-surface" judicial system.

Usually enforceable only by Article III courts
Article I gives no authority to Congress to adjudicate cases or controversies. (See INS v. Chadha, 462 U.S. 919 (1983) (rigid separation of powers ruling wherein the Court emphasized that Congress may legislate, not adjudicate)).



Enforceable only by District Court


Appeal (cert.) to U.S. Supreme Court


Review by Supreme Court


Appeal to, or enforcement by, District Court or Court of Appeals
After a case is adjudicated in an Article I court, great deference is given to that decision if appealed to an Article III court. The Article III court will uphold the agency court (Article I court) decision if there is any "substantial evidence" to support it.
The adjudication taking place in "Article I courts" must be labeled "quasi-judicial" because Article II (setting out powers of the executive branch which "creates" the agencies) does not grant judicial power. This limitation seems ironic in light of the fact that most law in the United States is created in agency courts.

De novo review by District Court
For example, judgments from the bankruptcy court may be appealed either to the district court or to the court of appeals. Congress' 1984 enactment regarding bankruptcy jurisdiction (28 U.S.C. Sections 151-158) also allows a court of appeals to establish a "bankruptcy appellate panel" of three bankruptcy judges to hear appeals.

Typically appointed by President for a term of years


Appointed by, and serve at pleasure of, military commanders


Usually appointed by, and serve at pleasure of, agency
For more information, click to theModern Administrative State flowchart.

Appointed by District Courts or Courts of Appeals for a term of years/B>


Bill of rights, basic rules of evidence
type text here

Per Uniform Code of Military Justice
type text here

Relaxed rules of evidence, due process


Bill of Rights; Federal Rules of Evidence


End of Text Assist