The concept of a legislative court was first defined by Chief Justice
John Marshall in the case of
American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828), which is sometimes referred to as
Canter, after a claimant in the case. In this case, a court in what was then the
Territory of Florida had made a ruling on the disposition of some bales of cotton that had been recovered from a sunken ship. This clearly fell into the realm of
admiralty law, which is part of the federal judicial power according to Article III of the Constitution. Yet the judges of the
Florida Territorial Court had four-year terms, not the lifetime appointments required by Article III of the Constitution. Marshall's solution was to declare that territorial courts were established under Article I of the constitution. As such, they could not exercise the federal judicial power, and therefore the law that placed admiralty cases in their jurisdiction was unconstitutional. 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.: [T]he argument is fallacious. 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. Nor has there been any settled practice on the part of Congress which gives special significance to the absence or presence of a provision respecting the tenure of judges. This may be illustrated by two citations. The same Congress that created the Court of Customs Appeals made provision for five additional circuit judges and declared that they should [370 U.S. 530, 597] hold their offices during good behavior; and yet the status of the judges was the same as it would have been had that declaration been omitted. In creating courts for some of the Territories Congress failed to include a provision fixing the tenure of the judges; but the courts became legislative courts just as if such a provision had been included. In
Glidden Co. v. Zdanok, the court made the following statement regarding courts in
unincorporated territories: 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. Ever since
Canter, the federal courts have been wrestling with the division between legislative and judicial courts. The Supreme Court most thoroughly delineated the permissible scope of Article I tribunals in
Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), striking down the
Bankruptcy Reform Act of 1978 that created the original
U.S. bankruptcy courts. The Court noted in that opinion that the framers of the Constitution had developed a scheme of
separation of powers which clearly required that the
judiciary be kept independent of the other two branches via the mechanism of lifetime appointments. This decision was subsequently revisited and affirmed in
Stern v. Marshall, 564 U.S. 462 (2011). However, the Court noted three situations (based on historical understanding) in which Congress could give judicial power to non-Article III courts: • Courts for non-state areas (U.S. territories and the
District of Columbia) in which Congress is acting as both local and national government. • Military courts (or courts-martial), under the historical understanding and clearly laid out exceptions in the Constitution. • Legislative courts established under the premise that, where Congress
could have simply given the Executive Branch the power to make a decision, it has the lesser power to create a tribunal to make that decision. This power is limited to adjudication of public rights, such as the settling of disputes between the citizens and the government. The Court also found that Congress has the power under Article I to create
adjunct tribunals, so long as the "essential attributes of judicial power" stay in Article III courts. This power derives from two sources. First, when Congress
creates rights, it can require those asserting such rights to go through an Article I tribunal. Second, Congress can create non-Article III tribunals to help Article III courts deal with their workload, but only if the Article I tribunals are under the control of the Article III courts. The bankruptcy courts, as well as the tribunals of
magistrate judges who decide some issues in the district courts, fall within this category of "adjunct" tribunals. All actions heard in an Article I tribunal are subject to
de novo review in the supervising Article III court, which retains the exclusive power to make and enforce final judgments. Pursuant to Congress' authority under Article IV, §3, of the Constitution to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"; Congress may create territorial courts and vest them with
subject-matter jurisdiction over causes arising under both federal law and local law. But "the Supreme Court long ago determined that in the 'unincorporated' territories, such as
American Samoa, the guarantees of the Constitution apply only insofar as its 'fundamental limitations in favor of personal rights' express 'principles which are the basis of all free government which cannot be with impunity transcended'." The Supreme Court noted in
Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986), that parties to litigation may voluntarily waive their right to an Article III tribunal and thereby submit themselves to a binding judgment from an Article I tribunal. However, the Supreme Court later noted in
Stern v. Marshall, 564 U.S. ___ (2011), that a party's right to an Article III tribunal is not always voluntarily waiveable in an Article I tribunal for suits at
common law. Similarly, in
Granfinanciera, S. A. v. Nordberg, 492 U.S. 33 (1989), the Court noted that a litigant's right to
jury trial under the
Seventh Amendment is also not generally waivable in an Article I tribunal for suits at common law. The Supreme Court further noted in
Granfinanciera and
Stern the parallel analysis of rights under Article III and the Seventh Amendment. Article IV judges, in that capacity, cannot sit on the
United States Courts of Appeals or decide an
appeal as part of such panels. ==List of Article I, Article III and Article IV tribunals==