LEGISLATIVE COURT, from "Encyclopedia of the American Constitution"


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Posted by Paul Andrew Mitchell, B.A., M.S. on September 29, 1998 at 16:02:49:

"Encyclopedia of the American Constitution,"
New York, MacMillan Publishing Company (1986),
Volume 3, page 1144, discussion of topic
LEGISLATIVE COURT

[begin quote]

The term "legislative court" was coined by Chief Jus-
tice JOHN MARSHALL to describe the status of courts
created by Congress to serve United States TERRITO-
RIES lying outside the boundaries of any state. Con-
gress had not given the judges of the territorial courts
the life tenure and salary guarantees that Article III
of the Constitution required for judges of CONSTITU-
TIONAL COURTS, and Marshall needed to explain the
anomaly of federal courts outside the contemplation
of Article III. In AMERICAN INSURANCE CO. V. CAN-
TER (1828) he concluded that Congress, in exercising
its power to govern the territories, could establish
courts that did not fit Article III's specifications. Today
this concept of legislative courts embraces all courts
created by Congress and staffed by judges who do
not enjoy constitutional protection of their tenure and
salaries. Examples include territorial courts, consular
courts, the Tax Court of the united States, the Bank-
ruptcy Court, the Court of Military Appeals, and the
courts of local jurisdiction operating in the DISTRICT
OF COLUMBIA and the Commonwealth of PUERTO
RICO.

Just as a legislative court's judges fall outside Article
III's guarantees of independence, so it is capable of
handling business outside that Article's definition of
"the JUDICIAL POWER OF THE UNITED STATES" --
something a constitutional court cannot constitution-
ally do. A legislative court, for example, can be as-
signed JURISDICTION to give ADVISORY OPINIONS to
the President or Congress. Yet, dspite Marshall's OBI-
TER DICTUM in the "Canter" opinion that a legislative
court is "incapable of receiving" jurisdiction lying
within the judicial power, it is clear today that such
courts, like administrative agencies, can constitution-
ally be assigned the initial decision of a great many
cases within Article III's definition of that power. (See
NORTHERN PIPELINE CONSTRUCTION CO. V. MARA-
THON PIPE LINE CO., 1982). Their decisions on such
Article III matters are reviewable by constitutional
courts, including the Supreme Court, when Congress
so provides.

With some difficulty,the Supreme Court has re-
solved controversies over the status of several courts.
The federal courts formerly serving the District of
Columbia were held protected by Article III's guaran-
tees of life tenure and salary protection. In this sense,
they were constitutional courts. However, the Court
also held that the same courts could constitutionally
be given work falling outside Article III's specification
of CASES AND CONTROVERSIES within the judicial
power. In 1970, Congress replaced these "hybrid"
courts with a dual court system: the constitutional
courts operate under Article III's strictures and the
legislative courts handle the local judicial business of
the District. In Palmore v. United States (1973) the
Supreme Court upheld the local courts' power to try
local crimes (established by congressional statute), de-
spite their judges' lack of life tenure and salary guaran-
tees.

Similarly, in Glidden Co. v.Zdanok (1962), the
Court staggered to the ruling -- based on two inconsis-
tent opinions, pieced together to make a majority for
the result -- that the old Court of Claims (see CLAIMS
COURT; UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT) and the COURT OF CUSTOMS AND
PATENT APPEALS were constitutional courts, not legis-
lative courts.

In essence a legislative court is merely an adminis-
trative agency with an elegant name. While Congress
surely has the power to transfer portions of the bus-
iness of the federal judiciary to legislative courts, a
wholesale transfer of that business would work a fun-
damental change in the status of our independent
judiciary and would seem vulnerable to constitutional
attack.

Kenneth L. Karst

Bibliography

Note 1962 "Legislative and Constitutional Courts: What
Lurks Ahead for Bifurcation," Yale Law Journal 71:979-1012.

[end quote]

CAPITALIZATIONS in original, to identify
topical entries elsewhere in this encyclopedia.


Sincerely yours,

/s/ Paul Andrew Mitchell, B.A., M.S.

Counselor at Law, Federal Witness,
and Private Attorney General



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