Posted by Paul Andrew Mitchell, B.A., M.S. on April 08, 1998 at 22:05:32:
In Reply to: Re: Does 28 U.S.C. 451destroy posted by Dave on April 08, 1998 at 19:00:11:
See U.S. v. Saunders, 641 F.2d 659 (9th Cir. 1980)
at headnote 3:
While Congress may establish "legislative
courts" whose judges do not enjoy Article III
guarantees, "inherently judicial" tasks must
be performed by Article III judges.
U.S.C.A.Const. Art. 3, Sec. 1 et seq.
Here is the full passage, corresponding to
headnote 3, to wit:
[3] Since American Insurance Co. v. 356
Bales of Cotton (Canter), 26 U.S. (1 Pet.)
511, 546, 7 L.Ed. 242 (1828), the Supreme
Court has recognized that Congress may
establish "legislative courts" whose judges
do not enjoy Article III guarantees. Such
courts have been upheld when their juris-
diction is limited to the territories, Canter,
26 U.S. (1 Pet.) at 546, to local matters
arising in the District of Columbia, Palmore
v. United Stattes, 411 U.S. 389, 390-91, 409-
10, 93 S.Ct. 1670, 1672-73, 1682-83, 36
L.Ed.2d 342 (1973), and to limited subject
matter, see Gosa v. Mayden, 413 U.S. 665,
686, 93 S.Ct. 2939, 37 L.Ed.2d 873
(1973) (Court of Military Appeals as a legis-
lative court). The Court has indicated,
however, that "inherently judicial" tasks
must be performed by Article III judges.
See., e.g., Glidden v. Zdanok, 370 U.S.
530, 549, 82 S.Ct. 1459, 1472, 8 L.Ed.2d 671
(1962); Ex parte Bakelite Corp., 279 U.S.
438, 458, 49 S.Ct. 411, 458, 73 L.Ed. 789
(1929).
The Bakelite decision is particularly clear:
Headnote 3: Article 3 of the Federal
Constitution declaring that the judicial
power of the United States shall be vested
in one Supreme Court, and in such inferior
courts as the Congress may from time to time
ordain and establish, does not express the
full authority of Congress to create courts;
but, in the exercise of powers conferred upon
Congress by other articles, it may create
inferior courts and clothe them with functions
deemed essential or helpful in carrying those
powers into execution.
Here is the full passage, corresponding to
this latter headnote 3, to wit:
While article 3 of the Constitution declares,
in section 1, that the judicial power of the
United States shall be vested in one Supreme
Court and in "such inferior courts as the
Congress may from time to time ordain and
establish," and prescribes, in section 2,
that this power shall extend to cases and
controversies of certain enumerated classes,
it long has been settled that article 3
does not express the full authority of
Congress to create courts, and that other
articles invest Congress with powers in the
exertion of which it may create inferior
courts and clothe them with functions deemed
essential or helpful in carrying those powers
into execution. But there is a difference <-----!!
between the two classes of courts. Those <---- two classes!!!
established under the specific power given
in section 2 of article 3 are called
constitutional courts. They share in the
exercise of judicial power defined in that
section, can be invested with no other juris-
diction, and have judges who hold office
during good behavior, with no power in
Congress to provide otherwise. On the
other hand, those created by Congress in
the exertion of other powers are called
legislative courts. Their functions al-
ways are direced to the execution of
one or more of such powers and are pre-
scribed by Congress independently of section
2 of article 3; and their judges hold for
such term as Congress prescribes, whether
it be a fixed period of years or during
good behavior.
The first pronouncement on the subject
by this court was in American Ins. Co. v.
356 Bales of Cotton, 1 Pet. 511, 7 L.Ed.
243, Fed. Cas. No. 302a, where the sta-
tus and jurisdiction of courts created by
Congress for the territory of Florida
were drawn into question. [450] Chief
Justice Marshall, speaking for the court,
said, p. 546:
"These courts, then, are not constitu-
tional courts, in which the judicial power
conferred by the Constitution on the gen-
eral government can be deposited. They
are incapable of receiving it. They are
legislative courts, created by virtue of the
general right of sovereignty which exists
in the government, or in virtue of that
clause which enables Congress to make all
needful rules and regulations respecting
the territory belonging to the United
States. The jurisdiction with which they
are invested is not a part of that judicial
power which is defined in the third article
of the Constitution, but is conferred by
Congress, in the execution of those gen-
eral powers which that body possesses
over the territories of the United States."
That ruling has been accepted and ap-
plied from that time to the present in
cases relating to territorial courts.
[numerous cites omitted]
A like view has been taken of the sta-
tus and jurisdiction of the courts provid-
ed by Congress for the District of Colum-
bia. These courts, this court has held,
are created in virtue of the power of Con-
gress "to exercise exclusive legislation"
over the district made the seat of the gov-
ernment of the United States, are legis-
lative rather than constitutional courts,
and may be clothed with the authority
and charged with the duty of giving ad-
visory decisions in proceedings which are
not cases or controversies within the
meaning of article 3, but are merely in
aid of legislative or executive action, and
therefore outside the admissible jurisdic-
tion of courts established under that arti-
cle. [numerous cites omitted]
Ex parte Bakelite Corp.,
279 U.S. 438, 458, 49 S.Ct. 411, 458,
73 L.Ed. 789 (1929)
As one of my early mentors stressed,
over and over:
"READ THE CASES!"
In other words, do NOT rely upon abstracts
or the case interpretations of others;
to know what a case actually held, you
must READ THE CASE!!
Sincerely yours,
/s/ Paul Andrew Mitchell, B.A., M.S.
Counselor at Law, Federal Witness
and Private Attorney General