Originally uploaded at SSRN.

Abstract

The Supreme Court’s Article III doctrine is built upon an explicit assumption that Article III must accommodate non-Article III tribunals in order to allow Congress to “innovate” by creating new procedural structures to further its substantive regulatory goals. In this Article, I challenge that fundamental assumption. I argue that each of the types of non-Article III innovation and the underlying procedural goals cited by the Court can be obtained through our Article III courts. The Article then demonstrates that these are not theoretical or hypothetical solutions, but instead are existing structures already in place within Article III. Demonstrating that the foundation of our existing Article III doctrine cannot stand does not necessarily require the invalidation of all non-Article III tribunals. Instead, it requires a new generation of theory, built upon a more accurate conception of the forms of adjudication. This Article proposes two pillars upon which this new jurisprudence may rest.

This Article undertakes to build the first piece of that foundation by demonstrating that tribunals only have unique institutional capacities when fulfilling an executive or legislative function — not when fulfilling purely adjudicative roles. This observation comports with the intuition of the early Article III doctrine. While this early intuition was abandoned to accommodate the modern administrative state, the Article reveals that these intuitions can not only be undertaken without undermining the modern administrative state, but would better satisfy the normative goals identified by the modern Court. This robustness suggests that this approach may provide a solid foundation for Article III doctrine, consonant not only with the existing architecture but also the innovation and evolution of law to come. But, equally important, correcting these mistaken assumptions reshapes many of the leading Article III theories in ways that provide answers to heretofore-unanswered critiques, as these insights have the capacity to demonstrate the feasibility of stricter constitutional approaches, while providing a constitutional basis for pragmatic doctrines.

The second component of the foundation lays in the exception to Article III — consent of the parties. The consent of the parties to a non-Article III structure has become a foundational premise in our jurisprudence, invoked as recently as last Term by the Court. But this Article argues that this doctrine is undertheorized and seeks to establish that mere consent is not sufficient to protect Article III’s individual rights and structural role. Specifically, the Article explores the ways in which Congress has utilized its constitutional power both to create law and to structure the courts to devalue substantive rights or litigation outcomes to pressure individuals to consent to the non-article III determination of state and common law claims. Viewed through this lens, permitting non-Article III adjudication based on party consent may incentivize precisely the types of exertions of power by Congress to undermine the constitutional courts that Article III sought to preclude. This Article suggests that the doctrine must take a harder look at consent if it is to protect not only the structural role of Article III, but even the individual’s Article III rights from encroachment by Congress.

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