Originalism and Article III Judicial Power

by Mike Rappaport

One of the most difficult challenges for originalism is to determine to what extent the Constitution limits the adjudication of matters by entities other than Article III federal courts.

This is an especially timely issue, because there is an important debate about the administrative state, and a significant part of the administrative state involves adjudication in administrative agencies or in legislative courts.  While the language of the Constitution appears to place real limits on adjudication in these non-article III entities, government practice from the early years of the Constitution appears inconsistent with that interpretation of the constitutional language.

But here comes a new article by originalist scholar, Will Baude, who has employed his formidible talents to understand the Constitution’s original meaning in this area.  Baude provides an interpretation of the constitutional text that accounts for the government practice, but still understands the language as imposing significant limits on adjudication outside of Article III federal courts.

Text versus History   

The basic issue in this area is that the constitutional text seems to create no exceptions to requiring federal adjudications to be in Article III courts.  The Constitution provides that “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.”  This language seems to suggest that all adjudications made by federal entities need to be made by Article III courts.  Since the Constitution requires that judges of these courts be given independence and life tenure, this would render much adjudication by administrative agencies and Article I courts unconstitutional.

But historically federal adjudications outside of Article III courts appeared to exist from the beginning.  So, if the Framers’ generation understood the Constitution that they wrote, how could they have created these exceptions?

There are two extreme approaches to these matters.  Some people have argued that the Framers’ generation simply did not understand the Constitution they enacted.  Thus, the historical departures from the separation of powers are unconstitutional.  The other approach suggests that the historical departures are constitutional and that they allow for other departures as well.  Under this view, the judicial power vesting clause would not place significant limits on what adjudications must be put in Article III federal courts.

Baude avoids these two unattractive positions.  The main intellectual move he makes is to argue that “the judicial power of the United States” should not be understand as referring to a procedure that resembles adjudication.  Instead, the term is primarily about exercising a type of power.  Thus, the fact that administrative law judges or other non-article III actors are taking actions that appear similar to those taken by courts does not matter.  Instead, the question is what type of power government actors are exercising rather than the procedures that they are following.

Territorial Courts

One longstanding exception to the requirement that federal adjudications take place in Article III courts is territorial courts.  In the early United States, a large portion of the country was comprised of territories that were not yet states.  The Supreme Court opined that such courts did not need to be Article III courts, even though they were established by the federal government.  How could that be?

Baude argues that these territorial courts were exercising judicial power, but were not exercising the judicial power of the United States.  Instead, they were exercising the judicial power of their territory.  He presents historical evidence that this is how people understood these courts.  The courts of the territory of Florida were exercising the judicial power of Florida.  Thus, they did not need to be Article III judges.  This also explains why other courts, such as the D.C. Courts and the Indian Courts, do not need to have Article III judges.

Administrative Agencies

A second exception involves adjudications by administrative agencies.  These adjudications can involve government benefits and military tribunals.  Baude sees these type of adjudications as not exercising the judicial power at all.  Instead, they exercise executive power.

Baude argues that adjudications of government benefits, such as public lands or welfare benefits, do not need to be in Article III courts.  Either under the Due Process Clause or Article III, common law rights, such as property, contract, and tort, must be adjudicated in federal courts.  But government benefits do not need to be in such courts.  Thus, it was within Congress’s authority to choose to place the adjudication of such benefits in administrative agencies that exercise executive power.

A similar story applies to two other exceptions.  While military tribunals do not involve government benefits, adjudications involving the military were held in ordinary courts even prior to the Constitution.  And, thus, this historical exception was incorporated into our charter.  Similarly, Baude argues that temporary deprivations of common law rights also did not need to be in Article III courts.  For example, in the famous case of Murray’s Lessee, the government’s action against a collector did not initially need to be in federal court, because the collector could file an action in federal court that would fully review the government’s decision.

These exceptions are significant, but notice that they are limited.  The federal government cannot simply put any matter into an administrative agency.  In particular, common law rights, such as operating a business, cannot be adjudicated in administrative agencies, even though such administrative adjudications are today regularly conducted by agencies such as the SEC or the FTC.

Adjuncts and Consensual Adjudication

Baude argues that a third area where non-Article III judges have been used involves cases where no power is exercised.  Thus, adjudications in this area can be conducted by entities that cannot exercise the judicial power of the United States.

One way that a entity might not exercise power is if it acts as an adjunct that does not undertake judicial power.  During the 19th Century, commissioners might undertake tasks, such as accepting bail and affidavits, but they had no arrest or imprisonment powers and therefore did not exercise judicial power.

Another way that an entity might not exercise judicial power is if its decision was by virtue of the consent of the parties.   For example, magistrate judges adjudicate civil cases and criminal misdemeanors with the consent of the parties.  Similarly, consent underlies private arbitrators that substitute for federal courts.  Baude persuasively argues that while consent cannot confer judicial power, it can make judicial power unnecessary.


There is much more to the paper.  But the importance of Baude’s paper is that he makes a persuasive case for showing that there is an interpretation of the constitutional language that conforms to early government practice while at the same placing real limitations on the use of non-Article III courts.  Depending on how one resolves some additional issues, the Constitution might prohibit administrative agencies from adjudicating a large number of cases involving common law rights, such as adjudications by the FTC, the SEC, the NLRB, and EPA.

Under this interpretation, the Constitution’s assignment of the judicial power to Article III judges is a real (and not merely symbolic constraint) on government action.  And that is a significant accomplishment.