MR. JUSTICE HARLAN announced the judgment of the Court and an opinion joined by MR. JUSTICE BRENNAN and MR. JUSTICE STEWART.
In Ex parte Bakelite Corp., 279 U.S. 438, and Williams v. United States, 289 U.S. 553, this Court held that the United States Court of Customs and Patent Appeals and the United States Court of Claims were neither confined in jurisdiction nor protected in independence by Article III of the Constitution, but that both had been created by virtue of other, substantive, powers possessed by Congress under Article I. The Congress has since pronounced its disagreement by providing as to each that "such court is hereby declared to be a court established under article III of the Constitution of the United
No. 242 is a suit brought by individual employees in a New York state court to recover damages for breach of a collective bargaining agreement, and removed to the Federal District Court for the Southern District of New York by the defendant employer on the ground of diversity of citizenship. The employees' right to recover was sustained by a divided panel of the Court of Appeals, in an opinion by Judge J. Warren Madden, then an active judge of the Court of Claims sitting by designation of the Chief Justice of the United States under 28 U. S. C. § 293 (a).
The claim advanced by the petitioners, that they were denied the protection of judges with tenure and compensation guaranteed by Article III, has nothing to do with the manner in which either of these judges conducted himself in these proceedings. No contention is made that either Judge Madden or Judge Jackson displayed a lack of appropriate judicial independence, or that either sought by his rulings to curry favor with Congress or the Executive. Both indeed enjoy statutory assurance of tenure and compensation,
Article III, § 1, however, is explicit and gives the petitioners a basis for complaint without requiring them to point to particular instances of mistreatment in the record. It provides:
Apart from this provision, it is settled that neither the tenure nor salary of federal officers is constitutionally protected from impairment by Congress. Crenshaw v. United States, 134 U.S. 99, 107-108; cf. Butler v. Pennsylvania, 10 How. 402, 416-418. The statutory declaration, therefore, that the judges of these two courts should serve during good behavior and with undiminished salary, see note 5, supra, was ineffective to bind any subsequent Congress unless those judges were invested at appointment with the protections of Article III. United States v. Fisher, 109 U.S. 143, 145; see McAllister v. United States, 141 U.S. 174, 186. And the petitioners naturally point to the Bakelite and Williams cases, supra, as establishing that no such constitutional protection was in fact conferred.
The distinction referred to in those cases between "constitutional" and "legislative" courts has been productive of much confusion and controversy. Because of the highly theoretical nature of the problem in its present context,
No challenge to the authority of the judges was filed in the course of the proceedings before them in either case. The Solicitor General, who submitted briefs and arguments for the United States, has seized upon this circumstance to suggest that the petitioners should be precluded by the so-called de facto doctrine from questioning the validity of these designations for the first time on appeal.
Whatever may be the rule when a judge's authority is challenged at the earliest practicable moment, as it was in United States v. American-Foreign S. S. Corp., 363 U.S. 685, in other circumstances involving judicial authority this Court has described it as well settled "that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public." McDowell v. United States, 159 U.S. 596, 602. The rule is founded upon an obviously sound policy of preventing litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware. Although a United States Attorney may be permitted on behalf of the public to upset an order issued upon defective authority, Frad v. Kelly, 302 U.S. 312, a private litigant ordinarily may not. Ball v. United States, 140 U.S. 118, 128-129.
The rule does not obtain, of course, when the alleged defect of authority operates also as a limitation on this Court's appellate jurisdiction. Ayrshire Collieries Corp. v. United States, 331 U.S. 132 (three-judge court); United States v. Emholt, 105 U.S. 414 (certificate of divided opinion). In other circumstances as well, when the statute claimed to restrict authority is not merely technical
A fortiori is this so when the challenge is based upon nonfrivolous constitutional grounds. In McDowell v. United States itself, supra, at 598-599, the Court, while holding that any defect in statutory authorization for a particular intracircuit assignment was immunized from examination by the de facto doctrine, specifically passed upon and upheld the constitutional authority of Congress to provide for such an assignment. And in Lamar v. United States, 241 U.S. 103, 117-118, the claim that an intercircuit assignment violated the criminal venue restrictions of the Sixth Amendment and usurped the presidential appointing power under Art. II, § 2, was heard here and determined upon its merits, despite the fact that it had not been raised in the District Court or in the Court of Appeals or even in this Court until the filing of a supplemental brief upon a second request for review.
The alleged defect of authority here relates to basic constitutional protections designed in part for the benefit of litigants. See O'Donoghue v. United States, 289 U.S. 516, 532-534. It should be examinable at least on direct review, where its consideration encounters none of the objections associated with the principle of res judicata, that there be an end to litigation. At the most is weighed in opposition the disruption to sound appellate process entailed by entertaining objections not raised below, and that is plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers. So this Court has concluded
The Court of Appeals for the District of Columbia found it unnecessary to reach the question whether Judge Jackson enjoyed constitutional security of tenure and compensation. It held that even if he did not, Congress might authorize his assignment to courts in the District of Columbia, by virtue of its power "To exercise exclusive Legislation in all Cases whatsoever" over the District. Art. I, § 8, cl. 17. The Solicitor General, in support of that ruling, argues here that because the criminal charge against petitioner Lurk was violation of a local statute, D. C. Code, 1961, § 22-2901, rather than of one national in application, its trial did not require the assignment of an Article III judge.
The question thus raised is itself of constitutional dimension, and one which we need not reach if an Article III judge was in fact assigned. In the companion case, No. 242, the necessity for such a judge is uncontested. The Court of Appeals for the Second Circuit sat to determine a question of state contract law presented for its decision solely by reason of the diverse citizenship of the litigants.
The next question is whether the character of the judges who sat in these cases may be determined without reference to the character of the courts to which they were originally appointed. If it were plain that these judges were invested upon confirmation with Article III tenure and compensation, it would be unnecessary for present purposes to consider the constitutional status of the Court of Claims and the Court of Customs and Patent Appeals.
No such course, however, appears to be open. The statutes under which Judge Madden and Judge Jackson were appointed speak of service only on those courts. 28 U. S. C. §§ 171, 211. They were not, as were the judges selected for the late Commerce Court, appointed as "additional circuit judges," Act of June 18, 1910, c. 309, 36 Stat. 539, 540, whose tenure might be constitutionally secured regardless of the fortunes of their courts. See 50 Cong. Rec. 5409-5418 (1913); Donegan v. Dyson, 269 U.S. 49; Frankfurter and Landis, The Business of the Supreme Court (1927), 168-173. It is true that at the time of Judge Jackson's appointment there was in force a statute authorizing assignment of Court of Customs and Patent Appeals judges to serve on the courts of the
A more novel suggestion is that the assignment statute itself, 28 U. S. C. §§ 291-296, authorized the Chief Justice to appoint inferior Article III judges in the course of designating them for service on Article III courts.
It is significant that Congress did not enact the present broad assignment statute until after it had declared the Court of Claims and the Court of Customs and Patent Appeals to be constitutional courts. Act of August 25, 1958, 72 Stat. 848. A major purpose of these declarations was to eliminate uncertainty whether regular Article III judges might be assigned to assist in the business of those courts when disability or disqualification made it difficult for them to obtain a quorum.
In determining the constitutional character of the Court of Claims and the Court of Customs and Patent Appeals, as we are thus led to do, we may not disregard Congress' declaration that they were created under Article III. Of course, Congress may not by fiat overturn the constitutional decisions of this Court, but the legislative history of the 1953 and 1958 declarations makes plain that it was far from attempting any such thing. Typical is a statement in the 1958 House Report that the purpose of the legislation was to "declare which of the powers Congress was intending to exercise when the court was created." H. R. Rep. No. 2349, 85th Cong., 2d Sess. 3 (1958); accord, H. R. Rep. No. 695, 83d Cong., 1st Sess. 3, 5, 7 (1953); and see S. Rep. No. 275, 83d Cong., 1st Sess. 2 (1953), substituted for S. Rep. No. 261, 83d Cong., 1st Sess. 2 (1953); 99 Cong. Rec. 8943, 8944 (1953) (remarks of Senator Gore).
"Subsequent legislation which declares the intent of an earlier law," this Court has noted, "is not, of course, conclusive in determining what the previous Congress meant. But the later law is entitled to weight when it comes to the problem of construction." Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90; accord, New York, P. & N. R. Co. v. Peninsula Exchange, 240 U.S. 34, 39. Especially is this so when the Congress has been stimulated by decisions of this Court to investigate the historical materials involved and has drawn from them a contrary conclusion. United States v. Hutcheson, 312 U.S. 219, 235-237. As examination of the House and Senate Reports makes evident, that is what occurred
At the time when Bakelite and Williams were decided, the Court did not have the benefit of this congressional understanding. The Williams case, for example, arose under the Legislative Appropriation Act of June 30, 1932, c. 314, § 107 (a) (5), 47 Stat. 382, 402, which reduced the salary of all judges "except judges whose compensation may not, under the Constitution, be diminished during their continuance in office." Mr. Justice Sutherland, who wrote the Court's opinions in both Williams and O'Donoghue, was plainly disadvantaged by the absence of congressional intimation as to which judges of which courts were to be deemed exempted. See O'Donoghue v. United States, 289 U.S. 516, 529.
In the Bakelite case, to be sure, Mr. Justice Van Devanter said of an argument drawn from tenuous evidence of congressional understanding that it "mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred." 279 U. S., at 459. Yet he would hardly have denied that explicit evidence of legislative intendment concerning the factors he thought controlling may be relevant and indeed highly persuasive. In any event, the Bakelite dictum did not embarrass the Court in deciding O'Donoghue, where it looked searchingly at "congressional practice" to determine what classification that body "recognizes." 289 U. S., at 548-550. We think the forthright statement of understanding embraced in the 1953 and 1958 declarations may be taken as similarly persuasive evidence for the problem now before us.
To give due weight to these congressional declarations is not of course to compromise the authority or responsibility
Furthermore, apart from this Court's considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases, e. g., United States v. South Buffalo R. Co., 333 U.S. 771, 774-775; see Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-408 and n. 1-3 (Brandeis, J., dissenting), there is the fact that Congress has acted on its understanding and has provided for assignment of judges who have made decisions that are now said to be impeachable. In these circumstances, the practical consideration underlying the doctrine of stare decisis—protection of generated expectations—actually militates in favor of reexamining the decisions. We are well-advised, therefore, to regard the questions decided in those cases as entirely open to reconsideration.
The Constitution nowhere makes reference to "legislative courts." The power given Congress in Art. I, § 8, cl. 9, "To constitute Tribunals inferior to the supreme Court," plainly relates to the "inferior Courts" provided for in Art. III, § 1; it has never been relied on for establishment of any other tribunals.
By these arresting observations the Chief Justice certainly did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. Elsewhere in the opinion he distinctly referred to the provisions of Article III to show that it was such a case. 1 Pet., at 545. All the Chief Justice meant, and what the case has ever after been
The reasons for this are not difficult to appreciate so long as the character of the early territories and some of the practical problems arising from their administration are kept in mind. The entire governmental responsibility in a territory where there was no state government to assume the burden of local regulation devolved upon the National Government. This meant that courts had to be established and staffed with sufficient judges to handle the general jurisdiction that elsewhere would have been exercised in large part by the courts of a State.
At the same time as the absence of a federal structure in the territories produced problems not foreseen by the Framers of Article III, the realities of territorial government typically made it less urgent that judges there enjoy the independence from Congress and the President envisioned by that article. For the territories were not ruled immediately from Washington; in a day of poor roads and slow mails, it was unthinkable that they should be. Rather, Congress left municipal law to be developed largely by the territorial legislatures, within the framework of organic acts and subject to a retained power of veto.
Against this historical background, it is hardly surprising that Chief Justice Marshall decided as he did. It would have been doctrinaire in the extreme to deny the right of Congress to invest judges of its creation with authority to dispose of the judicial business of the territories. It would have been at least as dogmatic, having recognized the right, to fasten on those judges a guarantee
The same confluence of practical considerations that dictated the result in Canter has governed the decision in later cases sanctioning the creation of other courts with judges of limited tenure. In United States v. Coe, 155 U.S. 76, 85-86, for example, the Court sustained the authority of the Court of Private Land Claims to adjudicate claims under treaties to land in the territories, but left it expressly open whether such a course might be followed within the States. The Choctaw and Chickasaw Citizenship Court was similarly created to determine questions of tribal membership relevant to property claims within Indian territory under the exclusive control of the National Government. See Stephens v. Cherokee Nation, 174 U.S. 445; Ex parte Joins, 191 U.S. 93; Wallace v. Adams, 204 U.S. 415. Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266-267; Balzac v. Porto Rico, 258 U.S. 298, 312-313; cf. Dorr v. United States, 195 U.S. 138, 145, 149, and to the consular courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464-465, 480.
The touchstone of decision in all these cases has been the need to exercise the jurisdiction then and there and for a transitory period. Whether constitutional limitations on the exercise of judicial power have been held inapplicable has depended on the particular local setting,
Since the conditions obtaining in one territory have been assumed to exist in each, this Court has in the past entertained a presumption that even those territorial judges who have been extended statutory assurances of life tenure and undiminished compensation have been so favored as a matter of legislative grace and not of constitutional compulsion. McAllister v. United States, 141 U.S. 174, 186.
The Bakelite opinion did not inquire whether there might be such a distinction. After sketching the history of the territorial and consular courts, it continued at once:
Since in the Court's view the jurisdiction conferred on both the Court of Claims and the Court of Customs and Patent Appeals included "nothing which inherently or necessarily requires judicial determination,"
We need not pause to assess the Court's characterization of the jurisdiction conferred on those courts, beyond indicating certain reservations about its accuracy.
But because Congress may employ such tribunals assuredly does not mean that it must. This is the crucial
This passage, cited in both the Bakelite and Williams opinions,
Thus Murray's Lessee, far from furnishing authority against the proposition that the Court of Claims is a constitutional court, actually supports it.
To deny that Congress may create tribunals under Article III for the sole purpose of adjudicating matters that it might have reserved for legislative or executive decision would be to deprive it of the very choice that Mr. Justice Curtis insisted it enjoys. Of course possession of the choice, assuming it is coextensive with the range of matters confided to the courts,
What has been said should suffice to demonstrate that whether a tribunal is to be recognized as one created under Article III depends basically upon whether its establishing legislation complies with the limitations of that article; whether, in other words, its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite. To ascertain whether the courts now under inquiry can meet those tests, we must turn to examine their history, the development of their functions, and their present characteristics.
A. Court of Claims.—The Court of Claims was created by the Act of February 24, 1855, c. 122, 10 Stat. 612, primarily to relieve the pressure on Congress caused by the volume of private bills. As an innovation the court was at first regarded as an experiment, and some of its creators were reluctant to give it all the attributes of a court by making its judgments final; instead it was authorized to hear claims and report its findings of fact and opinions to Congress, together with drafts of bills designed to carry its recommendations into effect. § 7, 10 Stat. 613; see Cong. Globe, 33d Cong., 2d Sess. 70-72 (1854) (remarks of Senators Brodhead and Hunter). From the outset, however, a majority of the court's proponents insisted that its judges be given life tenure as a means of assuring independence
By the end of 1861, however, it was apparent that the limited powers conferred on the court were insufficient to relieve Congress from the laborious necessity of examining the merits of private bills. In his State of the Union message that year, President Lincoln recommended that the legislative design to provide for the independent adjudication of claims against the United States be brought to fruition by making the judgments of the Court of Claims final. The pertinent text of his address is as follows, Cong. Globe, 37th Cong., 2d Sess., Appendix, p. 2:
By the Act of March 3, 1863, c. 92, § 5, 12 Stat. 765, 766, Congress adopted the President's recommendation and made the court's judgments final, with appeal to the
There was one further impediment. Section 14 of the 1863 Act, 12 Stat. 768, provided that "no money shall be paid out of the treasury for any claim passed upon by the court of claims till after an appropriation therefor shall be estimated for by the Secretary of the Treasury." In Gordon v. United States, 2 Wall. 561, this Court refused to review a judgment of the Court of Claims because it construed that section as giving the Secretary a revisory authority over the court inconsistent with its exercise of judicial power. Congress promptly repealed the offensive section, Act of March 17, 1866, c. 19, § 1, 14 Stat. 9, once again exhibiting its purpose to liberate the Court of Claims from itself and the Executive. Thereafter, the Supreme Court promulgated rules governing appeals from the court, 3 Wall. vii-viii, and took jurisdiction under them for the first time in De Groot v. United States, 5 Wall. 419.
The early appeals entertained by the Court furnish striking evidence of its understanding that the Court of Claims had been vested with judicial power. In De Groot the court had been given jurisdiction by special bill only after the passage of two private bills had failed to produce agreement by administrative officials upon adequate recompense. This Court was thus presented with a vivid illustration of the ways in which the same matter might be submitted for resolution to a legislative committee, to an executive officer, or to a court, Murray's Lessee, supra, and nevertheless accepted appellate jurisdiction over what was, necessarily, an exercise of the judicial power which alone it may review. Marbury v. Madison, 1 Cranch 137, 174-175.
After the repeal of § 14, the Court was quick to protect the Court of Claims' judgments from executive revision.
Like views abound in the early reports. In United States v. Union Pacific R. Co., 98 U.S. 569, 603, for example, referring to Article III, the Court said:
Such remained the view of the Court as late as Miles v. Graham, 268 U.S. 501, decided in 1925. There it was held, on the authority of Evans v. Gore, 253 U.S. 245, that the salary of a Court of Claims judge appointed even after enactment of the taxing statute in question was not subject to such diminution. Although the case was afterwards overruled on this point, O'Malley v. Woodrough, 307 U.S. 277, 283, what is of continuing interest is the
In actuality, the Court's pre-Bakelite view of the Court of Claims is supported by the evidence of increasing confidence placed in that tribunal by Congress. The Tucker Act, § 1, 24 Stat. 505 (1887), now 28 U. S. C. § 1491, greatly expanded the jurisdiction of the court by authorizing it to adjudicate
All of the cases within this grant of jurisdiction arise either immediately or potentially under federal law within the meaning of Art. III, § 2. Osborn v. Bank of the United States, 9 Wheat. 738, 818-819, 823-825; see Clearfield Trust Co. v. United States, 318 U.S. 363; Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380; Mishkin, The Federal "Question" in the District Courts, 53 Col. L. Rev. 157, 184-196. The cases heard by the Court have
Indeed there is reason to believe that the Court of Claims has been constituted as it is precisely to the end that there may be a tribunal specially qualified to hold the Government to strict legal accounting. From the beginning it has been given jurisdiction only to award damages, not specific relief. United States v. Alire, 6 Wall. 573; United States v. Jones, 131 U.S. 1; see Schwartz and Jacoby, Government Litigation (tentative ed. 1960), 123-126. No question can be raised of Congress' freedom, consistently with Article III, to impose such a limitation upon the remedial powers of a federal court. Lauf v. E. G. Shinner & Co., 303 U.S. 323, 330 (Norris-LaGuardia Act). But far from serving as a restriction, this limitation has allowed the Court of Claims a greater freedom than is enjoyed by other federal courts to inquire into the legality of governmental action. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 703-704; Malone v. Bowdoin, 369 U.S. 643; Brenner, Judicial Review by Money Judgment in the Court of Claims, 21 Fed. B. J. 179 (1961).
"If there are such things as political axioms," said Alexander Hamilton, "the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number." The Federalist,
B. The Court of Customs and Patent Appeals.—The Court of Customs Appeals, as it was first known, was established by § 29 of the Customs Administrative Act of 1890, c. 407, 26 Stat. 131, as added by § 28 of the Payne-Aldrich Tariff Act of August 5, 1909, c. 6, 36 Stat. 11, 105, to review by appeal final decisions of the Board of General Appraisers (now Customs Court) respecting the classification and rate of duty applicable to imported merchandise. The Act was silent about the tenure of the judges, as had been the Judiciary Act of 1789, c. 20, §§ 3, 4, 1 Stat. 73-75. The salary, first set at $10,000, was afterwards lowered to the $7,000 then being paid to circuit judges, Act of February 25, 1910, c. 62, § 1, 36 Stat. 202, 214, but before the first nominations had been received or confirmed, see 45 Cong. Rec. 2959, 4003 (1910); and, although it has since been increased, it has never been diminished.
The debates in the Senate at the time of the court's creation bear out this observation. See 44 Cong. Rec. 4185-4225 (1909). For under the Customs Administrative Act of 1890, c. 407, § 15, 26 Stat. 131, 138, review of decisions of the Board of General Appraisers had been vested in the Circuit Courts, undoubted Article III courts; it was this jurisdiction that was proposed to be transferred to the new court.
As was said some 35 years ago, "an important phase of the history of the federal judiciary deals with the movement for the establishment of tribunals whose business was to be limited to litigation arising from a restricted
The parallelism with the Commerce Court is especially striking. That court was created to exercise the jurisdiction previously held by the Circuit Courts to review orders of the Interstate Commerce Commission. Mann-Elkins Act of June 18, 1910, c. 309, 36 Stat. 539. It was needed, so its sponsors believed, to afford uniform, expert, and expeditious judicial review. See President Taft's message to Congress, 45 Cong. Rec. 379 (1910), in the course of which he stated:
When disfavor with the court caused its abolition three years later, Act of October 22, 1913, c. 32, 38 Stat. 208, 219, it was decided in Congress after extensive debate that the judges then serving on it were protected in tenure by Article III, and they were thereafter assigned to sit on
The Emergency Court of Appeals was similarly created, by the Act of January 30, 1942, c. 26, 56 Stat. 23, to exercise exclusive equity jurisdiction to determine the validity of regulations, price schedules, and orders issued by the wartime Office of Price Administration.
Of course the judges of those courts were appointed as judges of inferior federal courts generally, or drawn from among those previously appointed as such. See p. 538 and note 11, supra. But by 1942 at least, when the latter court was created, Congress was well aware of the doubt created by the Bakelite and Williams decisions whether Article III judges could sit on non-Article III tribunals. Its action in authorizing judges of the District Courts and Courts of Appeals to sit on the Emergency Court thus reflects its understanding that that court was being created under Article III.
Such an understanding parallels that of previous Congresses since the adoption of the Constitution. Congress has never been compelled to vest the entire jurisdiction provided for in Article III upon inferior courts of its creation; until 1875 it conferred very little of it indeed. See pp. 551-552, supra. The Court of Customs and Patent Appeals therefore fits harmoniously into the federal judicial system authorized by Article III.
Article III, § 2 provides in part:
The cases heard by the Court of Claims and the Court of Customs and Patent Appeals all arise under federal law, as we have seen; they are also cases in which the United States is a party. But in Williams v. United States, 289 U.S. 553, 572-578, far from making of that circumstance a further proof that the Court of Claims exercises the judicial power contemplated by Article III, this Court held that it did not because that article, so it was said, does not make justiciable controversies to which the United States is a party defendant.
The Court's opinion dwelt in part upon the omission of the word "all" before "Controversies" in the clause referred to. To derive controlling significance from this semantic circumstance seems hardly to be faithful to John Marshall's admonition that "it is a constitution we are expounding." McCulloch v. Maryland, 4 Wheat. 316, 407. But it would be needlessly literal to suppose that the Court rested its holding on this point. Rather it deemed controlling the rule, "well settled and understood" at the time of the Constitutional Convention, that "the sovereign power is immune from suit." 289 U. S., at 573. Accordingly it becomes necessary to reconsider whether that principle has the effect claimed of rendering suits against the United States nonjusticiable in a court created under Article III.
Hamilton's views, quoted in the Williams case, 289 U. S., at 576, are not to the contrary. To be sure, Hamilton argued that "the contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will." The Federalist, No. 81 (Wright ed. 1961), at 511. But that is because there was no surrender of sovereign immunity in the plan of the convention;
So the Court had given itself to understand before Williams was decided. In United States v. Louisiana, 123 U.S. 32, 35, it held maintainable under Article III a suit brought in the Court of Claims by a State against the United States with Congress' consent. And in Minnesota v. Hitchcock, 185 U.S. 373, 384, which reaffirmed that ruling, the Court said:
Further in the same opinion, 185 U. S., at 386, the Court significantly remarked:
In truth the District Courts have long been vested with substantial portions of the identical jurisdiction exercised by the Court of Claims. The Tucker Act, § 2, 24 Stat. 505 (1887), as amended, 28 U. S. C. § 1346 (a) (2), gives them concurrent jurisdiction over the suits it authorizes, when the amount in controversy is less than $10,000. Under that Act a District Court sits "as a court of claims," United States v. Sherwood, 312 U.S. 584, 591, and affords the same rights and privileges to suitors against the United States. Bates Manufacturing Co. v. United States, 303 U.S. 567, 571. See generally Schwartz and Jacoby, Government Litigation (tentative ed. 1960), 109-111.
There have been and are further statutory indications that Congress regards the two courts interchangeably. In 1921, Mr. Justice Brandeis compiled a list of 17 statutes passed during World War I, permitting suits against the United States for the value of property seized for use in the war effort, and authorizing them to be instituted in either the Court of Claims or one of the District Courts. United States v. Pfitsch, 256 U.S. 547, 553 n. 1. Today, 28 U. S. C. § 1500 gives litigants an election to sue the United States as principal in the Court of Claims or to
These evidences of congressional understanding that suits against the United States are justiciable in courts created under Article III may not be lightly disregarded. Nevertheless it is probably true that Congress devotes a more lively attention to the work performed by the Court of Claims, and that it has been more prone to modify the jurisdiction assigned to that court. It remains to consider whether that circumstance suffices to render non-judicial the decision of claims against the United States in the Court of Claims.
First. Throughout its history the Court of Claims has frequently been given jurisdiction by special act to award recovery for breach of what would have been, on the part of an individual, at most a moral obligation. E. g., 45 Stat. 602 (1928), as amended, 25 U. S. C. §§ 651-657; Indians of California v. United States, 98 Ct. Cl. 583, 599. Congress has waived the benefit of res judicata, Cherokee Nation v. United States, 270 U.S. 476, 486, and of defenses based on the passage of time, United States v. Alcea Band of Tillamooks, 329 U.S. 40, 45-46; United States v. Central Eureka Mining Co., 357 U.S. 155.
In doing so, as this Court has uniformly held, Congress has enlisted the aid of judicial power whose exercise is amenable to appellate review here. United States v. Alcea Band of Tillamooks, supra; see Colgate v. United States, 280 U.S. 43, 47-48. Indeed the Court has held
The issue was settled beyond peradventure in Pope v. United States, 323 U.S. 1. There the Court held that for Congress to direct the Court of Claims to entertain a claim theretofore barred for any legal reason from recovery —as, for instance, by the statute of limitations, or because the contract had been drafted to exclude such claims—was to invoke the use of judicial power, notwithstanding that the task might involve no more than computation of the sum due. Consent judgments, the Court recalled, are nonetheless judicial judgments. See 323 U. S., at 12, and cases cited. After this decision it cannot be doubted that when Congress transmutes a moral obligation into a legal one by specially consenting to suit, it authorizes the tribunal that hears the case to perform a judicial function.
Second. Congress has on occasion withdrawn jurisdiction from the Court of Claims to proceed with the disposition of cases pending therein, and has been upheld in so doing by this Court. E. g., District of Columbia v. Eslin, 183 U.S. 62. But that is not incompatible with the possession of Article III judicial power by the tribunal affected. Congress has consistently with that article withdrawn the jurisdiction of this Court to proceed with a case then sub judice, Ex parte McCardle, 7 Wall. 506; its power can be no less when dealing with an inferior federal court, In re Hall, 167 U.S. 38, 42. For as Hamilton assured those of his contemporaries who were concerned about the reach of power that might be vested in a federal judiciary, "it ought to be recollected that the national legislature will have ample authority to make
The authority is not, of course, unlimited. In 1870. Congress purported to withdraw jurisdiction from the Court of Claims and from this Court on appeal over cases seeking indemnification for property captured during the Civil War, so far as eligibility therefor might be predicated upon an amnesty awarded by the President, as both courts had previously held that it might. Despite Ex parte McCardle, supra, the Court refused to apply the statute to a case in which the claimant had already been adjudged entitled to recover by the Court of Claims, calling it an unconstitutional attempt to invade the judicial province by prescribing a rule of decision in a pending case. United States v. Klein, 13 Wall. 128. Surely no such concern would have been manifested if it had not been thought that the Court of Claims was invested with judicial power.
A more substantial question relating to the justiciability of money claims against the United States arises from the impotence of a court to enforce its judgments. It was Chief Justice Taney's opinion, in Gordon v. United
But Taney's opinion was not the opinion of the Court. It was a memorandum of his views prepared before his death and circulated among, but not adopted by, his brethren. The opinion of the Court, correctly reported for the first time in United States v. Jones, 119 U.S. 477, 478, makes clear that its refusal to entertain the Gordon appeal rested solely on the revisory authority vested in the Secretary of the Treasury before the repeal of § 14. See also United States v. Alire, 6 Wall. 573, 576; United States v. O'Grady, 22 Wall. 641, 647; Langford v. United States, 101 U.S. 341, 344-345—in each of which the limitation of the Gordon decision to the difficulties caused by § 14 clearly appears.
Nevertheless the problem remains and should be considered. Its scope has, however, been reduced by the Act of July 27, 1956, § 1302, 70 Stat. 678, 694, 31 U. S. C. § 724a, a general appropriation act which eliminates the need for subsequent separate appropriations to pay judgments below $100,000. A judgment creditor of this order simply files in the General Accounting Office a certificate of the judgment signed by the clerk and the chief judge of the Court of Claims, and is paid. 28 U. S. C. § 2517 (a). For judgments of this dimension, therefore, there need be no concern about the issuance of execution.
For claims in excess of $100,000, 28 U. S. C. § 2518 directs the Secretary of the Treasury to certify them to Congress once review in this Court has been foregone or sought and found unavailing. This, then, is the domain
The problem was recognized in the Congress that created the Court of Claims, where it was pointed out that if ability to enforce judgments were made a criterion of judicial power, no tribunal created under Article III would be able to assume jurisdiction of money claims against the United States. Cong. Globe, 33d Cong., 2d Sess. 113 (1854) (remarks of Senator Stuart). The subsequent vesting of such jurisdiction in the District Courts, pp. 565-566, supra, of course bears witness that at least the Congress has not thought such a criterion imperative.
Ever since Congress first accorded finality to judgments of the Court of Claims, it has sought to avoid interfering with their collection. Section 7 of the Act of March 3, 1863, 12 Stat. 765, 766, provided for the payment of final judgments out of general appropriations. In 1877, Congress shifted for a time to appropriating lump sums for judgments certified to it by the Secretary of the Treasury, not in order to question the judgments but to avoid the possibility that a large judgment might exhaust the prior appropriation. Act of March 3, 1877, c. 105, 19 Stat. 344, 347; see 6 Cong. Rec. 585-588 (1877). A study concluded in 1933 found only 15 instances in 70 years when Congress had refused to pay a judgment. Note, 46 Harv. L. Rev. 677, 685-686 n. 63. This historical record, surely more favorable to prevailing parties than that obtaining in private litigation, may well make us doubt whether the capacity to enforce a judgment is always indispensable for the exercise of judicial power.
All of the business that comes before the two courts is susceptible of disposition in a judicial manner. What remains to be determined is the extent to which it is in fact disposed of in that manner.
A preliminary consideration that need not detain us long is the absence of provision for jury trial of counter-claims by the Government in actions before the Court of Claims. Despite dictum to the contrary in United States v. Sherwood, 312 U.S. 584, 587, the legitimacy of that nonjury mode of trial does not depend upon the supposed "legislative" character of the court. It derives instead, as indeed was also noted in Sherwood, ibid., from the fact that suits against the Government, requiring as they do a legislative waiver of immunity, are not "suits at common law" within the meaning of the Seventh Amendment. McElrath v. United States, 102 U.S. 426, 439-440. The Congress was not, therefore, required to provide jury trials for plaintiffs suing in the Court of Claims; the reasonableness of its later decision to obviate the need for multiple litigation precludes a finding that its imposition of amenability to nonjury set-offs was an unconstitutional condition. Cf. Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S. 211; see 74 Harv. L. Rev. 414, 415 (1960).
The principal question raised by the parties under this head of the argument is whether the matters referred by Congress to the Court of Claims and the Court of Customs and Patent Appeals are submitted to them in a form consonant with the limitation of judicial power to "cases or
"Whether a proceeding which results in a grant is a judicial one," said Mr. Justice Brandeis for a unanimous Court, "does not depend upon the nature of the thing granted, but upon the nature of the proceeding which Congress has provided for securing the grant. The United States may create rights in individuals against itself and provide only an administrative remedy. It may provide a legal remedy, but make resort to the courts available only after all administrative remedies have been exhausted. It may give to the individual the option of either an administrative or a legal remedy. Or it may provide only a legal remedy. [See pp. 549-552, supra.] Whenever the law provides a remedy enforceable in the courts according to the regular course of legal procedure, and that remedy is pursued, there arises a case within the meaning of the Constitution, whether the subject of the litigation be property or status." Tutun v. United States, 270 U.S. 568, 576-577. (Citations omitted.)
It is unquestioned that the Tucker Act cases assigned to the Court of Claims, 28 U. S. C. § 1491, advance to judgment "according to the regular course of legal procedure." Under this grant of jurisdiction the court hears tax cases, cases calling into question the statutory authority for a regulation, controversies over the existence or extent of a contractual obligation, and the like. See generally Schwartz and Jacoby, Government Litigation (tentative ed. 1960), 131-223. Such cases, which account for as much as 95% of the court's work,
The balance of the court's jurisdiction to render final judgments may likewise be assimilated to the traditional business of courts generally. Thus the court has been empowered to render accountings,
The same may undoubtedly be said of the customs jurisdiction vested in the Court of Customs and Patent Appeals by 28 U. S. C. § 1541.
Doubt has been expressed, however, about the jurisdiction conferred by 28 U. S. C. § 1542 and 60 Stat. 435 (1946), as amended, 15 U. S. C. § 1071, to review application and interference proceedings in the Patent Office relative to patents and trademarks. Parties to those proceedings are given an election to bring a civil action to contest the Patent Office decision in a District Court under 35 U. S. C. §§ 145, 146, or to seek review in the Court of Customs and Patent Appeals under 35 U. S. C. § 141. If the latter choice is made, the Court confines its review to the evidence adduced before the Patent
The latter provision was evidently instrumental in prompting a decision of this Court, at a time when review of Patent Office determinations was vested in the Court of Appeals for the District of Columbia, that the ruling called for by the statute was not of a judicial character. Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 699. That is the most that the Postum holding can be taken to stand for, as United States v. Duell, 172 U.S. 576, 588-589, had upheld the judicial nature of the review in all other respects.
It may still be true that Congress has given to the equity proceeding a greater preclusive effect than that accorded to decisions of the Court of Customs and Patent Appeals.
Mr. Justice Brandeis, the author of the Tutun opinion, had also prepared the Court's opinion in United States v. Ness, 245 U.S. 319, which upheld the Government's right to seek denaturalization even upon grounds known to and
The decision in Tutun, coming after Ness, draws the patent and trademark jurisdiction now exercised by the Court of Customs and Patent Appeals fully within the category of cases or controversies. So much was recognized in Tutun itself, 270 U. S., at 578, where Mr. Justice Brandeis observed:
Like naturalization proceedings in a District Court, appeals from Patent Office decisions under 35 U. S. C. § 144 are relatively summary—since the record is limited to the evidence allowed by that office—and are not themselves subject to direct review by appeal as of right.
We turn finally to the more difficult question raised by the jurisdiction vested in the Court of Customs and Patent Appeals by 28 U. S. C. § 1543 to review Tariff Commission findings of unfair practices in import trade, and the congressional reference jurisdiction given the Court of Claims by 28 U. S. C. §§ 1492 and 2509. The judicial quality of the former was called into question though not resolved in Ex parte Bakelite Corp., 279 U.S. 438, 460-461,
Thus those limitations implicit in the rubric "case or controversy" that spring from the Framers' anxiety not to intrude unduly upon the general jurisdiction of state courts, see Madison's Notes of the Debates, in II Farrand, Records of the Federal Convention (1911), 45-46, need have no application in the District. The national courts here may, consistently with those limitations, perform any of the local functions elsewhere performed by state courts.
But those are not the only limitations embodied in Article III's restriction of judicial power to cases or controversies.
The jurisdictional statutes in issue, § 337 of the Tariff Act of 1930 and 28 U. S. C. §§ 1492, 2509, appear to subject the decisions called for from those courts to an extrajudicial revisory authority incompatible with the limitations upon judicial power this Court has drawn from Article III. See, e. g., Chicago & Southern Air Lines, Inc., v. Waterman S. S. Corp., 333 U.S. 103, 113-114; Hayburn's Case, 2 Dall. 409. Whether they actually do so is not, however, entirely free from difficulty, and cannot in our view appropriately be decided in a vacuum, apart from the setting of particular cases in which we may gauge the operation of the statutes. For disposition of the present cases, we think it is sufficient simply to note the doubt attending the validity of the jurisdiction, and to proceed on the assumption that it cannot be entertained by an Article III court.
It does not follow, however, from the invalidity, actual or potential, of these heads of jurisdiction, that either the Court of Claims or the Court of Customs and Patent Appeals must relinquish entitlement to recognition as an Article III court. They are not tribunals, as are for example the Interstate Commerce Commission or the Federal Trade Commission, a substantial and integral part of whose business is nonjudicial.
The Congress that enacted the assignment statute with its accompanying declarations was apprised of the possibility that a re-examination of the Bakelite and Williams decisions might lead to disallowance of some of these courts' jurisdiction. See 99 Cong. Rec. 8944 (1953) (remarks of Senator Gore); 104 Cong. Rec. 17549 (1958) (remarks of Senator Talmadge). Nevertheless it chose to pass the statute. We think with it that, if necessary, the particular offensive jurisdiction, and not the courts, would fall.
Since the Court of Claims and the Court of Customs and Patent Appeals are courts created under Article III, their judges—including retired judges, Booth v. United States, 291 U.S. 339, 350-351—are and have been constitutionally protected in tenure and compensation. Our conclusion, it should be noted, is not an ex post facto resurrection of a banished independence. The judges of these two courts have never accepted the dependent status thrust at them by the Bakelite and Williams decisions. See, e. g., Judge Madden writing for the Court of Claims in Pope v. United States, 100 Ct. Cl. 375, 53 F.Supp. 570, rev'd, 323 U.S. 1. The factors set out at length in this opinion, which were not considered in the Bakelite and Williams opinions, make plain that the differing conclusion we now reach does no more than confer legal recognition upon an independence long exercised in fact.
That recognition suffices to dispose of the present cases. For it can hardly be contended that the specialized functions of these judges deprive them of capacity, as a matter of due process of law, to sit in judgment upon the staple business of the District Courts and Courts of Appeals. Whether they should be given such assignments may be and has been a proper subject for congressional debate. e. g., 62 Cong. Rec. 190-191, 207-209 (1921), but once legislatively resolved it can scarcely rise to the dignity of a constitutional question. To be sure, a judge of specialized experience may at first need to devote extra time and energy to familiarize himself with criminal, labor relations, or other cases beyond his accustomed ken. But to elevate this temporary disadvantage into a constitutional disability would be tantamount to suggesting that the President may never appoint to the bench a lawyer whose life's practice may have been devoted to patent, tax, antitrust, or any other specialized
The judgments of the Courts of Appeals are
MR. JUSTICE FRANKFURTER took no part in the decision of this case.
MR. JUSTICE WHITE took no part in the consideration or decision of this case.
MR. JUSTICE CLARK, with whom THE CHIEF JUSTICE joins, concurring in the result.
I cannot agree to the unnecessary overruling of Ex parte Bakelite Corp., 279 U.S. 438 (1929), and Williams v. United States, 289 U.S. 553 (1933). Both were unanimous opinions by most distinguished Courts,
Long before Glidden v. Zdanok was filed, the Congress had declared the Court of Claims "to be a court established under article III of the Constitution of the United States." Act of July 28, 1953, § 1, 67 Stat. 226. Not that this ipse dixit made the Court of Claims an Article III court, for it must be examined in light of the congressional power exercised and the jurisdiction enjoyed, together with the characteristics of its judges. But the 1953 Act did definitely establish the intent of the Congress, which prior to that time was not clear in light of the Williams holding 20 years earlier that it was not an Article III court.
It is true that Congress still makes legislative references to the court, averaging some 10 a year. The acceptance of jurisdiction of either executive or legislative references calling for advisory opinions has never been honored by Article III courts. Indeed, this Court since 1793 has consistently refused so to act. Correspondence of the Justices, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 486-489. Muskrat v. United States, 219 U.S. 346 (1911). I do not construe the legislative history of the 1953 Act to be so clear as to require the Court of Claims to carry on this function, which appears to be minuscule. On the contrary, the congressional mandate clearly and definitely declared the court "to be a court established under article III." I would carry out that mandate. In my view the Court of Claims, if and when such a reference occurs, should with due deference advise the Congress, as this Court advised the President 169 years ago, that it cannot render advisory opinions.
Likewise I find that the Court of Customs and Patent Appeals has been an Article III court since 1958. It was created by the Congress in 1909 to exercise exclusive appellate jurisdiction over customs cases. Payne-Aldrich Tariff Act of Aug. 5, 1909, 36 Stat. 11, 105-108. At that time these cases were reviewed by Circuit Courts of Appeals—clearly of Article III status—36 Stat. 106, and they have since been considered on certiorari by this Court without suggestion that they were not "cases" in the Article III sense. E. g., The Five Per Cent. Discount
As I have indicated, supra, the handling of the tariff references—numbering only 6 in 40 years—is not an Article III court function. The Congress has declared
I see nothing in the argument that the 1953 and 1958 Acts so changed the character of these courts as to require new presidential appointments. Congress was merely renouncing its power to terminate the functions or reduce the tenure or salary of the judges of the courts. Much more drastic changes have been made without reappointment.
I would affirm.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
The decision in these cases has nothing to do with the character, ability, or qualification of the individuals who sat on assignment on the Court of Appeals in No. 242 and
Prior to today's decision the distinction between the two courts had been clear and unmistakable. By Art. I, § 8, Congress is given a wide range of powers, including
Mr. Justice Van Devanter in Ex parte Bakelite marked the line between the Court of Claims and the Court of
My Brother HARLAN emphasizes that both Judge Madden of the Court of Claims and Judge Jackson of the Court of Customs and Patent Appeals "enjoy statutory assurance of tenure and compensation"; and so they do. But that statement reveals one basic difference between an Article III judge and an Article I judge. The latter's tenure is statutory and statutory only; Article I contains no guarantee that the judges of Article I courts have life appointments. Nor does it provide that their salaries may not be reduced during their term of office. On the other hand, the tenure of an Article III judge is during "good behaviour"; moreover, Article III provides that its judges shall have a compensation that "shall not be diminished during their Continuance in Office." See O'Malley v. Woodrough, 307 U.S. 277. To repeat, there is not a word in Article I giving its courts such protection in tenure or in salary. A constitutional amendment would be necessary to supply Article I judges with the guarantees
The importance of these provisions to the independence of the judiciary needs no argument. Hamilton stated the entire case in The Federalist No. 79 (Lodge ed. 1908), pp. 491-493:
We should say here what was said in Toth v. Quarles, 350 U.S. 11, 17:
Tenure that is guaranteed by the Constitution is a badge of a judge of an Article III court. The argument that mere statutory tenure is sufficient for judges of Article III courts was authoritatively answered in Ex parte Bakelite Corp., supra, at 459-460:
Congress could make members of the Interstate Commerce Commission lifetime appointees. Yet I suppose no one would go so far as to say that a member of the Interstate Commerce Commission could be assigned to sit on the District Court or on the Court of Appeals. But if any agency member is disqualified, why is a member of another Article I tribunal, viz., the Court of Claims or the Court of Customs and Patent Appeals, qualified? No distinction can be drawn based on the functions performed by the Interstate Commerce Commission and those performed by the other two legislative tribunals. In each case some adjudicatory functions are performed.
The majority says that once the United States consents to be sued all problems of "justiciability" are satisfied; and
As Mr. Justice Brandeis made clear in Tutun v. United States, 270 U.S. 568, 576-577, an administrative remedy may be "judicial." The question here is different; it is whether the procedures utilized by the tribunal must comport with those set forth in the Bill of Rights and in the body of the Constitution. Yet who would maintain that in an administrative action for damages a jury trial was necessary?
Judges of the Article III courts work by standards and procedures which are either specified in the Bill of Rights or supplied by well-known historic precedents. Article III courts are law courts, equity courts, and admiralty courts
In other words, the question, apart from the constitutional guarantee of tenure and the provision against diminution of salary, concerns the functions of the particular tribunal. Article III courts have prescribed for them constitutional standards some of which are in the Bill of Rights, while some (as for example those concerning bills of attainder and ex post facto laws) are in the body of the Constitution itself. Article I courts, on the other hand, are agencies of the legislative or executive branch. Thus while Article III courts of law must sit with a jury in suits where the value in controversy exceeds $20, the Court of Claims—an Article I court—is not so confined by the Seventh Amendment. The claims which
The judicial functions exercised by Article III courts cannot be performed by Congress nor delegated to agencies under its supervision and control.
Moreover, when an Article III court of law acts, there is a precise procedure that must be followed:
Neither of these limitations is germane to litigation in the Court of Claims or in the Court of Customs and Patent Appeals. Those courts, moreover, exercise no criminal jurisdiction, no admiralty jurisdiction, no equity jurisdiction.
As noted, the advisory opinion is beyond the capacity of Article III courts to render. Muskrat v. United States, 219 U.S. 346. Yet it is part and parcel of the function of legislative tribunals.
Thus I cannot say, as some do, that the distinction between the two kinds of courts is a "matter of language."
An appointment is made by the President and confirmed by the Senate in light of the duties of the particular office. Men eminently qualified to sit on Article I tribunals or agencies are not picked or confirmed in light of their qualifications to preside at jury trials or to process on appeal the myriad of constitutional and procedural problems involved in Article III "cases" or "controversies." A President who sent a name to the Senate for the Interstate Commerce Commission or Federal Trade Commission might never dream of entrusting the nominee with the powers of an Article III judge. The tasks are so different, the responsibilities and the qualifications so diverse that it is difficult for one who knows the federal system to see how in the world of practical affairs these offices are interchangeable.
In the Senate debate on the Court of Customs Appeals, Senator Cummins stated that the judges who were to man it were to become tariff "experts" whose judicial business would be "confined to the matter of the duties on imports." 44 Cong. Rec. 4185. Senator McCumber, who spoke for the Committee, emphasized the technical nature of the work of those judges and the unique specialization of their work.
Could there be any doubt that the late John J. Parker, rejected by the Senate for this Court, would have been confirmed for one of these Article I courts?
It is said that Congress could separate law and equity and create federal judges who, though Article III judges, sit entirely on the equity side. If Congress can do that, it is said that Congress can divide up all judicial power as it chooses and by making tenure permanent allow judges to be assigned from an Article I to an Article III court. The fact that Article III judicial power may be so divided as to produce judges with no experience in the trial of jury cases or in the review of them on appeal is no excuse for allowing legislative judges to be imported into the important fields that Article III preserves and that are partly safeguarded by the Bill of Rights and partly represented by ancient admiralty practice
My view is that we subtly undermine the constitutional system when we treat federal judges as fungible. If members of the Court of Claims and of the Court of Customs
In sum, judges who do not perform Article III functions, who do not enjoy constitutional tenure and whose salaries are not constitutionally protected against diminution during their term of office cannot be Article III judges.
Judges who perform "judicial" functions on Article I courts do not adjudicate "cases" or "controversies" in the sense of Article III. They are not bound by the requirements of the Seventh Amendment concerning trial by jury.
Judges who sit on Article I courts are chosen for administrative or allied skills, not for their qualifications to sit in cases involving the vast interests of life, liberty, or property for whose protection the Bill of Rights and the other guarantees in the main body of the Constitution, including the ban on bills of attainder and ex post facto laws, were designed. Judges who might be confirmed for an Article I court might never pass muster for the onerous and life-or-death duties of Article III judges.
For these reasons I would reverse the judgments below.
". . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
It is significant that all of the jurisdiction at issue in the Keller, Postum, and General Electric cases has long since been transformed into judicial business. The change with respect to review of Patent Office decisions took place, as we have seen, p. 577, supra, before the transfer of that jurisdiction to the Court of Customs and Patent Appeals. Review of the Public Utilities Commission was restricted to questions of law upon the evidence before the Commission, in the Act of August 27, 1935, § 2, 49 Stat. 882, D. C. Code, 1961, § 43-705. See Public Utilities Comm'n v. Pollak, 343 U.S. 451, 458. And the Act of July 1, 1930, c. 788, 46 Stat. 844, likewise made review of the Radio Commission judicial, as was recognized in Federal Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266, 274-278.
The appointing authority given judges of the District Court to select members of the Board of Education and of the Commission on Mental Health, D. C. Code, §§ 31-101, 21-308, is probably traceable to Art. II, § 2 of the Constitution. See note 10, supra; Ex parte Siebold, 100 U.S. 371, 397-398.
"Further reflection tends only to confirm the views expressed in the Bakelite opinion . . . and we feel bound to reaffirm and apply them. And, giving these views due effect here, we see no escape from the conclusion that if the Court of Customs Appeals is a legislative court, so also is the Court of Claims." Williams, at 571. The Bakelite decision was posited squarely on the legislative reference function. See Ex parte Bakelite, supra, 454-458.
In O'Donoghue v. United States, supra, at 545, the Court said:
"The fact that Congress, under another and plenary grant of power, has conferred upon these courts jurisdiction over non-federal causes of action, or over quasi-judicial or administrative matters, does not affect the question. In dealing with the District, Congress possesses the powers which belong to it in respect of territory within a state, and also the powers of a state."
The eighteenth-century courts in this country performed many administrative functions. See Pound, Organization of Courts (1940), pp. 88-89. The propriety of the union of legislative and judicial powers in a state court was assumed in Prentis v. Atlantic Coast Line, 211 U.S. 210.
"Conspicuous among such matters are claims against the United States. These may arise in many ways and may be for money, lands or other things. They all admit of legislative or executive determination, and yet from their nature are susceptible of determination by courts; but no court can have cognizance of them except as Congress makes specific provision therefor. Nor do claimants have any right to sue on them unless Congress consents; and Congress may attach to its consent such conditions as it deems proper, even to requiring that the suits be brought in a legislative court specially created to consider them.
"The Court of Claims is such a court. It was created, and has been maintained, as a special tribunal to examine and determine claims for money against the United States. This is a function which belongs primarily to Congress as an incident of its power to pay the debts of the United States. But the function is one which Congress has a discretion either to exercise directly or to delegate to other agencies." Ex parte Bakelite Corp., 279 U.S. 438, 451-452.
"If we have recourse to that pure fountain from which all the jurisdiction of the Federal Courts is derived, we find language employed which cannot well be misunderstood. The Constitution declares, that `the 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; to all cases affecting ambassadors, or other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction.'
"The Constitution certainly contemplates these as three distinct classes of cases . . . ."
"In Keller v. Potomac Electric Co., 261 U.S. 428 (1923), where this Court had before it an Act under which the courts of the District of Columbia were given revisory power over rates set by the Public Utilities Commission of the District, the appellee sought to sustain the appellate jurisdiction given this Court by the Act on the basis that `Although Art. III of the Constitution limits the jurisdiction of the federal courts, this limitation is subject to the power of Congress to enlarge the jurisdiction, where such enlargement may reasonably be required to enable Congress to exercise the express powers conferred upon it by the Constitution.' 261 U. S. at 435. There, as here, the power relied upon was that given Congress to exercise exclusive jurisdiction over the District of Columbia, and to make all laws necessary and proper to carry such powers into effect. But this Court clearly and unequivocally rejected the contention that Congress could thus extend the jurisdiction of constitutional courts, citing the note to Hayburn's Case, 2 Dall. 409, 410 (1792); United States v. Ferreira, 13 How. 40, note, p. 52 (1851), and Gordon v. United States, 117 U.S. 697 (1864). These and other decisions of this Court clearly condition the power of a constitutional court to take cognizance of any cause upon the existence of a suit instituted according to the regular course of judicial procedure, Marbury v. Madison, 1 Cranch 137 (1803), the power to pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision, Muskrat v. United States, 219 U.S. 346 (1911); Gordon v. United States, supra, the absence of revisory or appellate power in any other branch of Government, Hayburn's Case, supra; United States v. Ferreira, supra, and the absence of administrative or legislative issues or controversies, Keller v. Potomac Electric Co., supra; Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927)."
First, that opinion cites with approval Ex parte McCardle, 7 Wall. 506, in which Congress withdrew jurisdiction of this Court to review a habeas corpus case that was sub judice, and then apparently draws a distinction between that case and United States v. Klein, 13 Wall. 128, where such withdrawal was not permitted in a property claim. There is a serious question whether the McCardle case could command a majority view today. Certainly the distinction between liberty and property (which emanates from this portion of my Brother HARLAN'S opinion) has no vitality even in terms of the Due Process Clause.
Second, Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, is apparently overruled. Why this is done is not apparent. That case ruled on the question whether a ruling on a Patent Office determination was "judicial." Whether it was or not is immaterial because, as already noted, Article I courts, like Article III courts, exercise "judicial" power. The only relevant question here is whether a court that need not follow Article III procedures is nonetheless an Article III court.
Third, it is implied that Congress could vest the lower federal courts with the power to render advisory opinions. The character of the District Court in the District of Columbia has been differentiated from the other District Courts by O'Donoghue v. United States, supra, in that the former is, in part, an agency of Congress to perform Article I powers. How Congress could transform regular Article III courts into Article I courts is a mystery. Certainly we should not decide such an important issue so casually and so unnecessarily.