Originally uploaded at SSRN.


The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private rights,” i.e., disputes under state or common law between private parties. In other words, despite Article III’s raison d’être, Article III is less likely to apply when the government is a party seeking to advance interests under federal law, and more likely to apply when the government has little to no interest in the controversy.

This essay for the George Mason Law Review’s “Agency Adjudication and the Rule of Law” symposium argues that the ever-expanding, shape-shifting public-rights exception to Article III—as it has developed from abstruse passages in Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856)—was neither inevitable nor consonant with Article III purposes or separation-of-powers underpinnings of Due Process. The public-rights exception is best justified, in general, as extending only to those matters that due process does not implicate (and thus those that Congress could have decided on its own). Accordingly, the public-rights exception’s domain should have an inverse relationship with Due Process’s domain. The essay concludes by considering whether Article III should track traditional notions of due process or modern ones.