Congressional Power to Create Federal Courts: A Legal Overview (CRS Report for Congress)
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| Release Date |
Revised June 1, 2015 |
| Report Number |
R43746 |
| Report Type |
Report |
| Authors |
Andrew Nolan, Richard M. Thompson II, Legislative Attorneys |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
The U.S. Constitution established only one federal court—the U.S. Supreme Court. Beyond this,
Article III of the Constitution left it to the discretion of Congress to “ordain and establish” lower
federal courts to conduct the judicial business of the federal government. From the very first,
Congress established a host of different federal tribunals to adjudicate a variety of legal disputes.
The two central types of federal “courts”—courts established under Article III and those tribunals
that are not—differ in many respects, including with regard to their personnel, purposes, and
powers.
Courts established pursuant to Article III are mainly defined by the three central constitutional
provisions to which they are subject: resolution of cases that only present live “cases or
controversies,” lifetime tenure, and salary protection. The primary purpose for these safeguards
was to insulate the federal judiciary from potential pressures, from either the political branches or
the public, which might improperly influence the judicial decision-making process.
Notwithstanding Article III’s seemingly literal command that the “judicial power” shall extend to
all cases “arising under” the Constitution or federal law, Congress has assigned a host of cases
arising under federal law to non-Article III bodies. Unlike Article III judges, these bodies,
generally referred to as “non-Article III courts,” “legislative courts,” or “Article I courts,” enjoy
neither lifetime tenure nor salary protection. There are two main categories of non-Article III
courts. The first are standalone courts, created under Congress’s Article I power, which have
similar authority as Article III courts, such as entering their own judgments and issuing contempt
orders. Examples of legislative courts include the U.S. Tax Court; the Court of Federal Claims;
the Court of Appeals for Veterans Claims; the Court of Appeals for the Armed Forces; and federal
district courts in Guam, the Virgin Islands, and the Northern Mariana Islands.The second
category of non-Article III tribunals is commonly referred to as “adjuncts” to Article III courts.
This category is mainly comprised of federal administrative agencies and magistrate judges.
These non-Article III bodies have been justified on several grounds. First, the Court has held that
in certain limited instances, Article III’s absolute command must give way to Congress’s exercise
of its Article I powers. This theory has been used to justify the creation of territorial courts,
military courts, and the adjudication of cases involving rights created by Congress (commonly
referred to as “public rights” cases). The second rationale is the use of “adjuncts,” judicial officers
who do not function as independent courts but instead act as a subordinate to the federal courts
with direct review of their decisions. Examples of adjuncts include the thousands of
administrative law judges who adjudicate cases coming before federal agencies and federal
magistrate judges who assist district court judges with everything from deciding motions, hearing
evidence, and trying both criminal and civil cases. Lastly, certain questions arising under federal
law may be resolved by non-Article III tribunals if the parties to the proceeding consent to such
an adjudication.
