Congressional Power to Establish Non-Article III Courts: Current Doctrine

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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Legislative courts, so-called because they are created by Congress pursuant to its general legislative powers, have comprised a significant part of the federal judiciary.1 Footnote
In Freytag v. Commissioner, 501 U.S. 868 (1991) , the Court held Article I courts to be “Courts of Law” for purposes of the appointments clause. Art. II, § 2, cl. 2. See id. at 888–892 (majority opinion), and 901-914 (Justice Scalia dissenting). The distinction between constitutional courts and legislative courts was first made in American Ins. Co. v. Canter ,2 Footnote
26 U.S. (1 Pet.) 511 (1828) . which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four-year term in office. Chief Justice Marshall wrote for the Court: “These courts, then, are not constitutional courts, in which the judicial power conferred by the constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in 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 3d article of the constitution, but is conferred by congress, in the execution of those general powers which that body possesses over the territories of the United States.” 3 Footnote
26 U.S. at 546 . The Court went on to hold that admiralty jurisdiction can be exercised in the states only in those courts that are established pursuant to Article III, but that the same limitation does not apply to the territorial courts, for in legislating for them “Congress exercises the combined powers of the general, and of a state government.” 4 Footnote
26 U.S. at 546 . In Glidden Co. v. Zdanok, 370 U.S. 530, 544–45 (1962) , Justice Harlan asserted that Chief Justice Marshall in Canter “did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. . . . All the Chief Justice meant . . . is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article. . . .”

Canter postulated a simple proposition: “Constitutional courts exercise the judicial power described in Art. III of the Constitution; legislative courts do not and cannot.” 5 Footnote
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 (1982) (Justice White dissenting). A two-fold difficulty attended this proposition, however. Admiralty jurisdiction is included within the “judicial power of the United States” specifically in Article III, requiring an explanation how this territorial court could receive and exercise it. Second, if territorial courts could not exercise Article III power, how might their decisions be subjected to appellate review in the Supreme Court, or indeed in other Article III courts, which could exercise only Article III judicial power?6 Footnote
That the Supreme Court could review the judgments of territorial courts was established in Durousseau v. United States, 10 U.S. (6 Cr.) 307 (1810) . See also Benner v. Porter, 50 U.S. (9 How.) 235, 243 (1850) ; Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434 (1872) ; Balzac v. Porto Rico, 258 U.S. 298 (1922) . Moreover, if in fact some “judicial power” may be devolved upon courts not having the constitutional security of tenure and salary, what prevents Congress from undermining those values intended to be protected by Article III's guarantees by giving jurisdiction to unprotected entities that, being subjected to influence, would be bent to the popular will?

Power of Congress Over Legislative Courts

In creating legislative courts, Congress is not limited by the restrictions imposed in Article III concerning tenure during good behavior and the prohibition against diminution of salaries. Congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the Tax Court; it may subject the judges of legislative courts to removal by the President;9 Footnote
McAllister v. United States, 141 U.S. 174 (1891) . and it may reduce their salaries during their terms.10 Footnote
United States v. Fisher, 109 U.S. 143 (1883) ; Williams v. United States, 289 U.S. 553 (1933) . Similarly, it follows that Congress can vest in legislative courts nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus, in Gordon v. United States ,11 Footnote
69 U.S. (2 Wall.) 561 (1865) . there was no objection to the power of the Secretary of the Treasury and Congress to revise or suspend the early judgments of the Court of Claims. Likewise, in United States v. Ferreira ,12 Footnote
54 U.S. (13 How.) 40 (1852) . the Court sustained the act conferring powers on the Florida territorial court to examine claims rising under the Spanish treaty and to report its decisions and the evidence on which they were based to the Secretary of the Treasury for subsequent action. “A power of this description,” the Court said, “may constitutionally be conferred on a Secretary as well as on a commissioner. But [it] is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.” 13 Footnote
54 U.S. at 48 .

Review of Legislative Courts by Supreme Court

Chief Justice Taney's view, which would have been expressed in Gordon ,14 Footnote
The opinion in Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865) , had originally been prepared by Chief Justice Taney, but, following his death and reargument of the case, the Court issued the cited opinion. The Court later directed the publishing of Taney's original opinion at 117 U.S. 697 . See also United States v. Jones, 119 U.S. 477, 478 (1886) , in which the Court noted that the official report of Chief Justice Chase's Gordon opinion and the Court's own record showed differences and quoted the record. that the judgments of legislative courts could never be reviewed by the Supreme Court, was tacitly rejected in De Groot v. United States ,15 Footnote
72 U.S. (5 Wall.) 419 (1867) . See also United States v. Jones, 119 U.S. 477 (1886) . in which the Court took jurisdiction from a final judgment of the Court of Claims. Since the decision in this case, the authority of the Court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts but rather upon the nature of the proceeding before the lower court and the finality of its judgment. The Supreme Court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such a body.16 Footnote
E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927) ; Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930) ; D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) . See Glidden Co. v. Zdanok, 370 U.S. 530, 576, 577–579 (1962) . But, in proceedings before a legislative court that are judicial in nature, admit of a final judgment, and involve the performance of judicial functions and therefore the exercise of judicial power, the Court may be vested with appellate jurisdiction.17 Footnote
Pope v. United States, 323 U.S. 1, 14 (1944) ; D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) .

The Public Rights Distinction

A major delineation of the distinction between Article I courts and Article III courts appears in Murray's Lessee v. Hoboken Land & Improvement Co. 18 Footnote
59 U.S. (18 How.) 272 (1856) . At issue was a summary procedure, without benefit of the courts, for the collection by the United States of moneys claimed to be due from one of its own customs collectors. It was argued that the assessment and collection was a judicial act carried out by nonjudicial officers and was thus invalid under Article III. Accepting that the acts complained of were judicial, the Court nonetheless sustained the act by distinguishing between any act, “which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty,” which, in other words, is inherently judicial, and other acts that Congress may vest in courts or in other agencies. “[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” 19 Footnote
59 U.S. at 284 .

In essence, the Court distinguished between those acts that historically had been determined by courts and those that had both been historically resolved by executive or legislative acts and comprehended matters that arose between the government and others. Thus, Article I courts “may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control.” 20 Footnote
Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929) . Among the matters susceptible of judicial determination, but not requiring it, are claims against the United States,21 Footnote
Gordon v. United States , 117 U.S. 697 (1865) (published 1885); McElrath v. United States, 102 U.S. 426 (1880) ; Williams v. United States, 289 U.S. 553 (1933) . On the status of the then-existing Court of Claims, see Glidden Co. v. Zdanok, 370 U.S. 530 (1962) . the disposal of public lands and claims arising therefrom,22 Footnote
United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims). questions concerning membership in Indian tribes,23 Footnote
Wallace v. Adams, 204 U.S. 415 (1907) ; Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court). and questions arising out of the administration of the customs and internal revenue laws.24 Footnote
Old Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929) ; Ex parte Bakelite Corp., 279 U.S. 438 (1929) . Other courts similar to territorial courts, such as consular courts and military courts martial, may be justified on like grounds.25 Footnote
See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military courts may, on the other hand, be a separate entity of the military having no connection to Article III. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1858) . But cf. Ortiz v. United States , 138 S. Ct. 2165, 2168 (2018) (noting that the “essential character” of the military justice system is “in a word, judicial” ).

The impact of the “public rights” distinction, however, has varied dramatically over time. In Crowell v. Benson ,26 Footnote
285 U.S. 22 (1932) . the Court approved an administrative scheme for determining, subject to judicial review, maritime employee compensation claims, although it acknowledged that the case involved “one of private right, that is, of the liability of one individual to another under the law as defined.” 27 Footnote
285 U.S. at 51 . On the constitutional problems of assignment to an administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977) ; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937) . This scheme was permissible, the Court said, because in cases arising out of congressional statutes, an administrative tribunal could make findings of fact and render an initial decision on legal and constitutional questions, as long as there is adequate review in a constitutional court.28 Footnote
301 U.S. at 51–65 . The “essential attributes” of decisions must remain in an Article III court, but so long as it does, Congress may use administrative decisionmakers in those private rights cases that arise in the context of a comprehensive federal statutory scheme.29 Footnote
301 U.S. at 50, 51, 58–63 . Thus, Article III concerns were satisfied by a review of the agency fact finding upon the administrative record. Id. at 63–65 . The plurality opinion denied the validity of this approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n.39 (1982) , although Justice White in dissent accepted it. Id. at 115 . The plurality, rather, rationalized Crowell and subsequent cases on an analysis seeking to ascertain whether agencies or Article I tribunals were “adjuncts” of Article III courts, that is, whether Article III courts were sufficiently in charge to protect constitutional values. Id. at 76–87 . In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. , discussed infra, the Court reasserted that the distinction between “public rights” and “private rights” was still important in determining which matters could be assigned to legislative courts and administrative agencies and those that could not be, but there was much the Court plurality did not explain.30 Footnote
458 U.S. 50, 67–70 (1982) (plurality opinion). Thus, Justice Brennan observes that “a matter of public rights must at a minimum arise ‘between the government and others,’” but “that the presence of the United States as a proper party to the proceeding is a necessary but not sufficient means of distinguishing 'private rights' from 'public rights.'” Id. at 69 & n.23 . Crowell v. Benson , however, remained an embarrassing presence.

The Court continued to waver with respect to the importance of the public rights/private rights distinction. In two cases following Marathon , it rejected the distinction as “a bright line test,” and instead focused on “substance” —i.e., on the extent to which the particular grant of jurisdiction to an Article I court threatened judicial integrity and separation of powers principles.31 Footnote
Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985) ; CFTC v. Schor, 478 U.S. 833 (1986) . The cases also abandoned the principle that the Federal Government must be a party for the case to fall into the “public rights” category. Thomas , 473 U.S. at 586 ; see also id. at 596–99 (Justice Brennan concurring). Nonetheless, the Court indicated that the distinction may be an appropriate starting point for analysis. Thus, the fact that private rights traditionally at the core of Article III jurisdiction are at stake leads the Court to a “searching” inquiry as to whether Congress is encroaching inordinately on judicial functions, whereas the concern is not so great where “public” rights are involved.32 Footnote
“In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that ‘could be conclusively determined by the Executive and Legislative Branches,’ the danger of encroaching on the judicial powers is reduced.” Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline , 458 U.S. at 68 (plurality opinion)).

However, in a subsequent case, Granfinanciera, S.A. v. Nordberg , the distinction was pronounced determinative not only of the issue whether a matter could be referred to a non-Article III tribunal, but whether Congress could dispense with civil jury trials.33 Footnote
492 U.S. 33, 51–55 (1989) . A Seventh Amendment jury-trial case, the decision is critical to the Article III issue as well, because, as the Court makes clear what was implicit before, whether Congress can submit a legal issue to an Article I tribunal and whether it can dispense with a civil jury on that legal issue must be answered by the same analysis. “[T]he question whether the Seventh Amendment permits Congress to assign its adjudication to a tribunal that does not employ juries as factfinders requires the same answer as the question whether Article III allows Congress to assign adjudication of that cause of action to a non-Article III tribunal . . . .” Id. at 52–53 . See also Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC , No. 16-712, slip op. at 17 (2018) ( “This Court’s precedents establish that, when Congress properly assigns a matter to adjudication in a non-Article III tribunal, ‘the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.’” (quoting Granfinanciera , 492 U.S. at 53–54 )). In so doing, however, the Court vitiated much of the core content of “private” rights as a concept and left resolution of the central issue to a balancing test. That is, “public” rights are, strictly speaking, those in which the cause of action inheres in or lies against the Federal Government in its sovereign capacity, the understanding since Murray's Lessee . However, to accommodate Crowell v. Benson , Atlas Roofing , and similar cases, seemingly private causes of action between private parties will also be deemed “public” rights when Congress, acting for a valid legislative purpose pursuant to its Article I powers, fashions a cause of action that is analogous to a common-law claim and integrates it so closely into a public regulatory scheme that it becomes a matter appropriate for agency resolution with limited involvement by the Article III judiciary.34 Footnote
492 U.S. at 52–54 . The Court reiterated that the government need not be a party as a prerequisite to a matter being of “public right.” Id. at 54 . Concurring, Justice Scalia argued that public rights historically were and should remain only those matters to which the Federal Government is a party. Id. at 65 . See also Stern v. Marshall, 564 U.S. ___, No. 10-179, slip op. at 25 (2011) ( “[W]hat makes a right 'public' rather than private is that the right is integrally related to particular Federal Government action” ).

In Stern v. Marshall ,35 Footnote
See 564 U.S. 462 (2011) . the Court shifted away from the functionalism of previous cases and back towards the formalism of Northern Pipeline . Specifically, the Stern Court held that Article III prohibited a bankruptcy court from exercising jurisdiction over a common law claim concerning fraudulent interference with a gift because it did not fall under the public rights exception.36 Footnote
Id. at 487–88 . The Court limited the public rights exception to claims deriving from a “federal regulatory scheme” or claims in which “an expert Government agency is deemed essential to a limited regulatory objective.” 37 Footnote
Id. at 465 . In rejecting the application of the public rights exception to the fraudulent interference claim, the Court observed that the claim was not one that could be “pursued only by grace of the other branches” or could have been “determined exclusively” by the executive or legislative branches.38 Footnote
Id. Additionally, the underlying claim did not “flow from a federal regulatory scheme” and was not limited to a “particularized area of law.” 39 Footnote
Id. Because the claim involved the “most prototypical exercise of judicial power,” adjudication of a common law cause of action not created by federal law, the Court rejected the bankruptcy courts' exercise of jurisdiction over the claim as violating Article III.40 Footnote
Id.

Nonetheless, in Oil States Energy Services, LLC v. Greene's Energy Group , LLC, the Court noted that it “has not 'definitively explained' the distinction between public and private rights, and its precedents applying the public-rights doctrine have 'not been entirely consistent.'” 41 Footnote
No. 16-712, slip op. at 6 (2018) (quoting N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69 (1982) (plurality opinion); Stern , 564 U.S. at 488 ). The Court observed, however, that these “precedents have given Congress significant latitude to assign adjudication of public rights to entities other than Article III courts.” 42 Footnote
Oil States Energy Services, LLC , No. 16-712, slip op. at 6 . In Oil States , the Court addressed whether inter partes review, a type of patent validity proceeding conducted by the U.S. Patent and Trademark Office (PTO), violates Article III.43 Footnote
Id. at 1 . The Court held that such proceedings “fall[] squarely within the public-rights doctrine,” and therefore could constitutionally be conducted by a non-Article III tribunal.44 Footnote
Id. at 6–7 . In so holding, the Court noted that the “case d[id] not require us to add to the 'various formulations' of the public-rights doctrine.” 45 Footnote
Id. at 6 (quoting N. Pipeline Constr. Co. , 458 U.S. at 69 ). Instead, the Court described the public-rights doctrine as “cover[ing] matters 'which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.'” 46 Footnote
Id. (quoting Crowell v. Benson, 285 U.S. 22, 50 (1932) ). The Court then held “that the decision to grant a patent is a matter involving public rights—specifically, the grant of a public franchise “that” need not be adjudicated in Article III court.” 47 Footnote
Id. at 7, 8 . Further, because “[i]nter partes review involves the same basic matter as the grant of a patent,” the Court concluded that “it, too, falls on the public-rights side of the line.” 48 Footnote
Id. at 8 . Accordingly, having held that inter partes review falls within the public-rights doctrine, the Court determined that such review did not involve an exercise of Article III judicial power, so Congress constitutionally assigned these proceedings to the PTO.49 Footnote
Id. at 9–10 .

Status of Courts of the District of Columbia

Through a long course of decisions, the courts of the District of Columbia were regarded as legislative courts upon which Congress could impose nonjudicial functions. In Butterworth v. United States ex rel. Hoe ,50 Footnote
112 U.S. 50 (1884) . the Court sustained an act of Congress which conferred revisory powers upon the Supreme Court of the District in patent appeals and made its decisions binding only upon the Commissioner of Patents. Similarly, the Court later sustained the authority of Congress to vest revisory powers in the same court over rates fixed by a public utilities commission.51 Footnote
Keller v. Potomac Elec. Co., 261 U.S. 428 (1923) . Not long after this the same rule was applied to the revisory powers of the District Supreme Court over orders of the Federal Radio Commission.52 Footnote
Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930) . These rulings were based on the assumption, express or implied, that the courts of the District were legislative courts, created by Congress pursuant to its plenary power to govern the District of Columbia. In dictum in Ex parte Bakelite Corp. ,53 Footnote
279 U.S. 438, 450–455 (1929) . while reviewing the history and analyzing the nature of the legislative courts, the Court stated that the courts of the District were legislative courts.

In 1933, nevertheless, the Court abandoned all previous dicta on the subject and found the courts of the District of Columbia to be constitutional courts exercising the judicial power of the United States,54 Footnote
O'Donoghue v. United States, 289 U.S. 516 (1933) . with the result that it assumed the task of reconciling the performance of nonjudicial functions by such courts with the rule that constitutional courts can exercise only the judicial power of the United States. This task was accomplished by the argument that, in establishing courts for the District, Congress performs dual functions pursuant to two distinct powers: the power to constitute tribunals inferior to the Supreme Court, and its plenary and exclusive power to legislate for the District of Columbia. However, Article III, § 1, limits this latter power with respect to tenure and compensation, but not with respect to vesting legislative and administrative powers in such courts. Subject to the guarantees of personal liberty in the Constitution, “Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a state legislature has in conferring jurisdiction on its courts.” 55 Footnote
289 U.S. at 545 . Chief Justice Hughes in dissent argued that Congress’s power over the District was complete in itself and the power to create courts there did not derive at all from Article III. Id. at 551 . See the discussion of this point of O'Donoghue in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949) . Cf. Hobson v. Hansen , 265 F. Supp. 902 (D.D.C. 1967) (three-judge court).

In 1970, Congress formally recognized two sets of courts in the District: federal courts (the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia, created pursuant to Article III), and courts equivalent to state and territorial courts (including the District of Columbia Court of Appeals), created pursuant to Article I.56 Footnote
Pub. L. No. 91-358, 84 Stat. 475, D.C. Code § 11-101. Congress’s action was sustained in Palmore v. United States .57 Footnote
411 U.S. 389 (1973) . When legislating for the District, the Court held, Congress has the power of a local legislature and may, pursuant to Article I, § 8, cl. 17, vest jurisdiction to hear matters of local law and local concerns in courts not having Article III characteristics. The defendant's claim that he was denied his constitutional right to be tried before an Article III judge was denied on the basis that it was not absolutely necessary that every proceeding in which a charge, claim, or defense based on an act of Congress or a law made under its authority need be conducted in an Article III court. State courts, after all, could hear cases involving federal law as could territorial and military courts. “[T]he requirements of Art. III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment.” 58 Footnote
411 U.S. at 407–08 . See also Pernell v. Southall Realty Co., 416 U.S. 363, 365–365 (1974) ; Swain v. Pressley, 430 U.S. 372 (1977) ; Key v. Doyle, 434 U.S. 59 (1978) . Under Swain , provision for hearing of motions for post-judgment relief by convicted persons in the District, the present equivalent of habeas for federal convicts, is placed in Article I courts. That there are limits to Congress’s discretion is asserted in dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201–202, 204 (1977) .

Bankruptcy Courts

This broad grant of jurisdiction, however, brought into question what kinds of cases could be heard by an Article I court. In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. , a case in which a company petitioning for reorganization made a claim against another company for breaches of contract and warranty – purely state law claims—the Court held that the conferral of jurisdiction upon Article I judges to hear state claims regarding traditional common law actions such as existed at the time of the drafting of the Constitution was unconstitutional.60 Footnote
The statement of the holding is that of the two concurring Justices, 458 U.S. at 89 (Justices Rehnquist and O’Connor), with which the plurality agreed “at the least,” while desiring to go further. Id. at 87 n.40 . Although the holding was extremely narrow, a plurality of the Court sought to rationalize and limit the Court's jurisprudence of Article I courts.

According to the plurality, a fundamental principle of separation of powers requires the judicial power of the United States to be exercised by courts having the attributes prescribed in Article III. Congress may not evade the constitutional order by allocating this judicial power to courts whose judges lack security of tenure and compensation. Only in three narrowly circumscribed instances may judicial power be distributed outside the Article III framework: in territories and the District of Columbia, that is, geographical areas in which no state operated as sovereign and Congress exercised the general powers of government; courts martial, that is, the establishment of courts under a constitutional grant of power historically understood as giving the political branches extraordinary control over the precise subject matter; and the adjudication of “public rights,” that is, the litigation of certain matters that historically were reserved to the political branches of government and that were between the government and the individual.61 Footnote
458 U.S. at 63–76 (Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens). In bankruptcy legislation and litigation not involving any of these exceptions, the plurality would have held, the judicial power to process bankruptcy cases could not be assigned to the tribunals created by the act.62 Footnote
The plurality also rejected an alternative basis, a contention that as “adjuncts” of the district courts, the bankruptcy courts were like United States magistrates or like those agencies approved in Crowell v. Benson, 285 U.S. 22 (1932) , to which could be assigned fact-finding functions subject to review in Article III courts, the fount of the administrative agency system. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76–86 (1982) . According to the plurality, the act vested too much judicial power in the bankruptcy courts to treat them like agencies, and it limited the review of Article III courts too much.

The dissent argued that, although on its face Article III provided that judicial power could only be assigned to Article III entities, the history since Canter belied that simplicity. Rather, the precedents clearly indicated that there is no difference in principle between the work that Congress may assign to an Article I court and that which must be given to an Article III court. Despite this, the dissent contended that Congress did not possess plenary discretion in choosing between the two systems; rather, in evaluating whether jurisdiction was properly reposed in an Article I court, the Supreme Court must balance the values of Article III against both the strength of the interest Congress sought to further by its Article I investiture and the extent to which Article III values were undermined by the congressional action. This balancing would afford the Court, the dissent believed, the power to prevent Congress, were it moved to do so, from transferring jurisdiction in order to emasculate the constitutional courts of the United States.63 Footnote
458 U.S. at 92, 105–13, 113–16 (Justice White, joined by Chief Justice Burger and Justice Powell).

Congress responded to Marathon by enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984.66 Footnote
Pub. L. No. 98-353, 98 Stat. 333, judiciary provisions at 28 U.S.C. §§ 151 et seq . Bankruptcy courts were maintained as Article I entities, and overall their powers as courts were not notably diminished. However, Congress did establish a division between “core proceedings,” which could be heard and determined by bankruptcy courts, subject to lenient review, and other proceedings, which, though initially heard and decided by bankruptcy courts, could be reviewed de novo in the district court at the behest of any party, unless the parties had consented to bankruptcy-court jurisdiction in the same manner as core proceedings. A safety valve was included, permitting the district court to withdraw any proceeding from the bankruptcy court on cause shown.67 Footnote
See 28 U.S.C. § 157 .

Notice, however, that in Granfinanciera, S.A. v. Nordberg 68 Footnote
492 U.S. 33 (1989) . the Court, evaluating the related issue of when a jury trial is required under the Seventh Amendment,69 Footnote
See Seventh Amendment, Cases at Common law, infra. found that a cause of action to avoid a fraudulent money transfer was founded on state law, and, although denominated a core proceeding by Congress, was actually a private right. Similarly, the Court in Stern v. Marshall 70 Footnote
564 U.S. ___, No. 10-179, slip op. (2011) . held that a counterclaim of tortuous interference with a gift, although made during a bankruptcy proceeding and statutorily deemed a core proceeding, was a state common law claim that did not fall under any of the public rights exceptions.71 Footnote
The Court noted that the claim “. . . is not a matter that can be pursued only by grace of the other branches . . . or one that 'historically could have been determined exclusively by' those branches . . . . It does not 'depend[] on the will of Congress’s . . . ; Congress has nothing to do with it. [It] . . . does not flow from a federal statutory scheme . . . . [And it] is not 'completely dependent upon' adjudication of a claim created by federal law . . . .” 564 U.S. ___, No. 10-179, slip op. at 27 (2011) (citations omitted). The Court also noted that filing of a claim in bankruptcy court (here, a defamation claim) did not constitute consent to a counter-claim, as the claimant had nowhere else to go to obtain recovery. Id. Nonetheless, as the Court later held in Wellness International v. Sharif ,72 Footnote
575 U.S. ___, No. 13-935, slip op. (2015) . a bankruptcy court may adjudicate with finality a so-called Stern claim—that is, a core claim that does not fall within the public rights exception—if the parties have provided knowing and voluntary consent, arguably limiting the ultimate impact of Stern for federal bankruptcy law.73 Footnote
See id. at 20 .

Agency Adjudication

In two decisions subsequent to Marathon involving legislative courts, Thomas v. Union Carbide Agric. Products Co. 74 Footnote
473 U.S. 568 (1985) . and CFTC v. Schor ,75 Footnote
478 U.S. 833 (1986) . the Court clearly suggested that the majority was now closer to the balancing approach of the Marathon dissenters than to the Marathon plurality's position that Congress may confer judicial power on legislative courts only in very limited circumstances. Subsequently, however, Granfinanciera, S.A. v. Nordberg ,76 Footnote
492 U.S. 33 (1989) . a reversion to the fundamentality of Marathon , with an opinion by the same author, Justice Brennan, cast some doubt on this proposition.

In Union Carbide , the Court upheld a provision of a pesticide law which required binding arbitration, with limited judicial review, of compensation due one registrant by another for mandatory sharing of registration information pursuant to federal statutory law. And in Schor , the Court upheld conferral on the agency of authority, in a reparations adjudication under the Act, to also adjudicate “counterclaims” arising out of the same transaction, including those arising under state common law. Neither the fact that the pesticide case involved a dispute between two private parties nor the fact that the CFTC was empowered to decide claims traditionally adjudicated under state law proved decisive to the Court's analysis.

In rejecting a “formalistic” approach and analyzing the “substance” of the provision at issue in Union Carbide , Justice O’Connor`s opinion for the Court pointed to several considerations.77 Footnote
Contrast the Court's approach to Article III separation of powers issues with the more rigid approach enunciated in INS v. Chadha and Bowsher v. Synar , involving congressional incursions on executive power. The right to compensation was not a purely private right, but “bears many of the characteristics of a ‘public’ right,” because Congress was “authoriz[ing] an agency administering a complex regulatory scheme to allocate costs and benefits among voluntary participants in the program. . . .” 78 Footnote
473 U.S. at 589 . Also deemed important was not “unduly constrict[ing] Congress’s ability to take needed and innovative action pursuant to its Article I powers” ;79 Footnote
CFTC v. Schor , 478 U.S. at 851 (summarizing the Thomas rule). arbitration seen as “a pragmatic solution to [a] difficult problem.” 80 Footnote
Thomas , 473 U.S. at 590 . The limited nature of judicial review was seen as a plus in the sense that “no unwilling defendant is subjected to judicial enforcement power.” On the other hand, availability of limited judicial review of the arbitrator's findings and determination for fraud, misconduct, or misrepresentation, and for due process violations, preserved the “‘appropriate exercise of the judicial function.’” 81 Footnote
Thomas , 473 U.S. at 591, 592 (quoting Crowell v. Benson, 285 U.S. 22, 54 (1932) ). Thus, the Court concluded, Congress in exercise of Article I powers “may create a seemingly ‘private’ right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.” 82 Footnote
473 U.S. at 594 .

In Schor , the Court described Art. III, § 1 as serving a dual purpose: to protect the role of an independent judiciary and to safeguard the right of litigants to have claims decided by judges free from potential domination by the other branches of government. A litigant's Article III right is not absolute, the Court determined, but may be waived. This the litigant had done by submitting to the administrative law judge's jurisdiction rather than independently seeking relief as he was entitled to and then objecting only after adverse rulings on the merits. But the institutional integrity claim, not being personal, could not be waived, and the Court reached the merits. The threat to institutional independence was “weighed” by reference to “a number of factors.” The conferral on the CFTC of pendent jurisdiction over common law counterclaims was seen as more narrowly confined than was the grant to bankruptcy courts at issue in Marathon , and as more closely resembling the “model” approved in Crowell v. Benson . The CFTC's jurisdiction, unlike that of bankruptcy courts, was said to be confined to “a particularized area of the law;” the agency's orders were enforceable only by order of a district court,83 Footnote
Cf. Union Carbide , 473 U.S. at 591 (fact that “FIFRA arbitration scheme incorporates its own system of internal sanctions and relies only tangentially, if at all, on the Judicial Branch for enforcement” cited as lessening danger of encroachment on “Article III judicial powers” ). and reviewable under a less deferential standard, with legal rulings being subject to de novo review; and the agency was not empowered, as had been the bankruptcy courts, to exercise “all ordinary powers of district courts.” 84 Footnote
See CFTC v. Schor, 478 U.S. 833, 853 (1986) . Notwithstanding Schor's efforts to distinguish between the context presented in that case and the bankruptcy context, the Court, in Wellness International v. Sharif , extended Schor's holding to adjudications of private right claims by bankruptcy courts. See 575 U.S. ___, No. 13-935, slip op. (2015) . Specifically, the Wellness International Court utilized the balancing approach employed by Schor to conclude that allowing bankruptcy courts to decide a fraudulent conveyance claim by consent would not “impermissibly threaten the institutional integrity of the Judicial Branch,” id. at 12 (quoting Schor , 478 U.S. at 851 ), because (1) the underlying class of claims that was being adjudicated by the non-Article III court was “narrow” in nature, resulting in a “de minimis” intrusion on the federal judiciary; (2) the bankruptcy court was ultimately supervised and overseen by a constitutional court and not Congress; and (3) the Court found “no indication” that Congress, in allowing bankruptcy courts to decide with finality certain private right claims, was acting in “an effort to aggrandize itself or humble the Judiciary.” Id. at 13–14 .

Granfinanciera followed analysis different from that in Schor , although it preserved Union Carbide through its concept of “public rights.” State law and other legal claims founded on private rights could not be remitted to non-Article III tribunals for adjudication unless Congress, in creating an integrated public regulatory scheme, has so taken up the right as to transform it. It may not simply relabel a private right and place it into the regulatory scheme. The Court is hazy with respect to whether the right itself must be a creature of federal statutory action. The general descriptive language suggests that, but the Court seemingly goes beyond this point in its determination whether the right at issue in the case, the recovery of preferential or fraudulent transfers in the context of a bankruptcy proceeding, is a “private right” that carries with it a right to jury trial. Though a statutory interest, the actions were identical to state-law contract claims brought by a bankrupt corporation to augment the estate.85 Footnote
Granfinanciera , 492 U.S. at 51–55, 55–60 . Schor was distinguished solely on the waiver part of the decision, relating to the individual interest, without considering the part of the opinion deciding the institutional interest on the merits and utilizing a balancing test.86 Footnote
492 U.S. at 59 n.14 . Thus, although the Court has made some progress in reconciling its growing line of disparate cases, doctrinal harmony has not yet been achieved.

Footnotes 1 In Freytag v. Commissioner, 501 U.S. 868 (1991) , the Court held Article I courts to be “Courts of Law” for purposes of the appointments clause. Art. II, § 2, cl. 2. See id. at 888–892 (majority opinion), and 901-914 (Justice Scalia dissenting). 2 26 U.S. (1 Pet.) 511 (1828) . 3 26 U.S. at 546 . 4 26 U.S. at 546 . In Glidden Co. v. Zdanok, 370 U.S. 530, 544–45 (1962) , Justice Harlan asserted that Chief Justice Marshall in Canter “did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. . . . All the Chief Justice meant . . . is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article. . . .” 5 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 106 (1982) (Justice White dissenting). 6 That the Supreme Court could review the judgments of territorial courts was established in Durousseau v. United States, 10 U.S. (6 Cr.) 307 (1810) . See also Benner v. Porter, 50 U.S. (9 How.) 235, 243 (1850) ; Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434 (1872) ; Balzac v. Porto Rico, 258 U.S. 298 (1922) . 7 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90, 91 (1982) (Justice Rehnquist concurring). 8 In addition to the local courts of the District of Columbia, the bankruptcy courts, and the U.S. Court of Federal Claims, considered infra, these include the United States Tax Court, formerly an independent agency in the Treasury Department, but by the Tax Reform Act of 1969, § 951, 83 Stat. 730, 26 U.S.C. § 7441 , made an Article I court of record, the Court of Veterans Appeals, Act of Nov. 18, 1988, 102 Stat. 4105, 38 U.S.C. § 4051, and the courts of the territories of the United States. Magistrate judges are adjuncts of the District Courts, see infra, and perform a large number of functions, usually requiring the consent of the litigants. See Gomez v. United States, 490 U.S. 858 (1989) ; Peretz v. United States, 501 U.S. 923 (1991) . The U.S. Court of Military Appeals, strictly speaking, is not part of the judiciary but is a military tribunal, 10 U.S.C. § 867 , although Congress designated it an Article I tribunal and has given the Supreme Court certiorari jurisdiction over its decisions. 9 McAllister v. United States, 141 U.S. 174 (1891) . 10 United States v. Fisher, 109 U.S. 143 (1883) ; Williams v. United States, 289 U.S. 553 (1933) . 11 69 U.S. (2 Wall.) 561 (1865) . 12 54 U.S. (13 How.) 40 (1852) . 13 54 U.S. at 48 . 14 The opinion in Gordon v. United States, 69 U.S. (2 Wall.) 561 (1865) , had originally been prepared by Chief Justice Taney, but, following his death and reargument of the case, the Court issued the cited opinion. The Court later directed the publishing of Taney's original opinion at 117 U.S. 697 . See also United States v. Jones, 119 U.S. 477, 478 (1886) , in which the Court noted that the official report of Chief Justice Chase's Gordon opinion and the Court's own record showed differences and quoted the record. 15 72 U.S. (5 Wall.) 419 (1867) . See also United States v. Jones, 119 U.S. 477 (1886) . 16 E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927) ; Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930) ; D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) . See Glidden Co. v. Zdanok, 370 U.S. 530, 576, 577–579 (1962) . 17 Pope v. United States, 323 U.S. 1, 14 (1944) ; D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) . 18 59 U.S. (18 How.) 272 (1856) . 19 59 U.S. at 284 . 20 Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929) . 21 Gordon v. United States, 117 U.S. 697 (1865) (published 1885); McElrath v. United States, 102 U.S. 426 (1880) ; Williams v. United States, 289 U.S. 553 (1933) . On the status of the then-existing Court of Claims, see Glidden Co. v. Zdanok, 370 U.S. 530 (1962) . 22 United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims). 23 Wallace v. Adams, 204 U.S. 415 (1907) ; Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court). 24 Old Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929) ; Ex parte Bakelite Corp., 279 U.S. 438 (1929) . 25 See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military courts may, on the other hand, be a separate entity of the military having no connection to Article III. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1858) . But cf. Ortiz v. United States , 138 S. Ct. 2165, 2168 (2018) (noting that the “essential character” of the military justice system is “in a word, judicial” ). 26 285 U.S. 22 (1932) . 27 285 U.S. at 51 . On the constitutional problems of assignment to an administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977) ; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937) . 28 301 U.S. at 51–65 . 29 301 U.S. at 50, 51, 58–63 . Thus, Article III concerns were satisfied by a review of the agency fact finding upon the administrative record. Id. at 63–65 . The plurality opinion denied the validity of this approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n.39 (1982) , although Justice White in dissent accepted it. Id. at 115 . The plurality, rather, rationalized Crowell and subsequent cases on an analysis seeking to ascertain whether agencies or Article I tribunals were “adjuncts” of Article III courts, that is, whether Article III courts were sufficiently in charge to protect constitutional values. Id. at 76–87 . 30 458 U.S. 50, 67–70 (1982) (plurality opinion). Thus, Justice Brennan observes that “a matter of public rights must at a minimum arise ‘between the government and others,’” but “that the presence of the United States as a proper party to the proceeding is a necessary but not sufficient means of distinguishing 'private rights' from 'public rights.'” Id. at 69 & n.23 . Crowell v. Benson , however, remained an embarrassing presence. 31 Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985) ; CFTC v. Schor, 478 U.S. 833 (1986) . The cases also abandoned the principle that the Federal Government must be a party for the case to fall into the “public rights” category. Thomas , 473 U.S. at 586 ; see also id. at 596–99 (Justice Brennan concurring). 32 “In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that ‘could be conclusively determined by the Executive and Legislative Branches,’ the danger of encroaching on the judicial powers is reduced.” Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline , 458 U.S. at 68 (plurality opinion)). 33 492 U.S. 33, 51–55 (1989) . A Seventh Amendment jury-trial case, the decision is critical to the Article III issue as well, because, as the Court makes clear what was implicit before, whether Congress can submit a legal issue to an Article I tribunal and whether it can dispense with a civil jury on that legal issue must be answered by the same analysis. “[T]he question whether the Seventh Amendment permits Congress to assign its adjudication to a tribunal that does not employ juries as factfinders requires the same answer as the question whether Article III allows Congress to assign adjudication of that cause of action to a non-Article III tribunal . . . .” Id. at 52–53 . See also Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC , No. 16-712, slip op. at 17 (2018) ( “This Court’s precedents establish that, when Congress properly assigns a matter to adjudication in a non-Article III tribunal, ‘the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.’” (quoting Granfinanciera , 492 U.S. at 53–54 )). 34 492 U.S. at 52–54 . The Court reiterated that the government need not be a party as a prerequisite to a matter being of “public right.” Id. at 54 . Concurring, Justice Scalia argued that public rights historically were and should remain only those matters to which the Federal Government is a party. Id. at 65 . See also Stern v. Marshall, 564 U.S. ___, No. 10-179, slip op. at 25 (2011) ( “[W]hat makes a right 'public' rather than private is that the right is integrally related to particular Federal Government action” ). 35 See 564 U.S. 462 (2011) . 36 Id. at 487–88 . 37 Id. at 465 . 38 Id. 39 Id. 40 Id. 41 No. 16-712, slip op. at 6 (2018) (quoting N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69 (1982) (plurality opinion); Stern , 564 U.S. at 488 ). 42 Oil States Energy Services, LLC , No. 16-712, slip op. at 6 . 43 Id. at 1 . 44 Id. at 6–7 . 45 Id. at 6 (quoting N. Pipeline Constr. Co. , 458 U.S. at 69 ). 46 Id. (quoting Crowell v. Benson, 285 U.S. 22, 50 (1932) ). 47 Id. at 7, 8 . 48 Id. at 8 . 49 Id. at 9–10 . 50 112 U.S. 50 (1884) . 51 Keller v. Potomac Elec. Co., 261 U.S. 428 (1923) . 52 Federal Radio Comm’n v. General Elec. Co., 281 U.S. 464 (1930) . 53 279 U.S. 438, 450–455 (1929) . 54 O'Donoghue v. United States, 289 U.S. 516 (1933) . 55 289 U.S. at 545 . Chief Justice Hughes in dissent argued that Congress’s power over the District was complete in itself and the power to create courts there did not derive at all from Article III. Id. at 551 . See the discussion of this point of O'Donoghue in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949) . Cf. Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 1967) (three-judge court). 56 Pub. L. No. 91-358, 84 Stat. 475, D.C. Code § 11-101. 57 411 U.S. 389 (1973) . 58 411 U.S. at 407–08 . See also Pernell v. Southall Realty Co., 416 U.S. 363, 365–365 (1974) ; Swain v. Pressley, 430 U.S. 372 (1977) ; Key v. Doyle, 434 U.S. 59 (1978) . Under Swain , provision for hearing of motions for post-judgment relief by convicted persons in the District, the present equivalent of habeas for federal convicts, is placed in Article I courts. That there are limits to Congress’s discretion is asserted in dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201–202, 204 (1977) . 59 Bankruptcy Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549, codified in titles 11, 28. The bankruptcy courts were made “adjuncts” of the district courts by § 201(a), 28 U.S.C. § 151 (a). For citation to the debate with respect to Article III versus Article I status for these courts, see Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 61 n.12 (1982) (plurality opinion). 60 The statement of the holding is that of the two concurring Justices, 458 U.S. at 89 (Justices Rehnquist and O’Connor), with which the plurality agreed “at the least,” while desiring to go further. Id. at 87 n.40 . 61 458 U.S. at 63–76 (Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens). 62 The plurality also rejected an alternative basis, a contention that as “adjuncts” of the district courts, the bankruptcy courts were like United States magistrates or like those agencies approved in Crowell v. Benson, 285 U.S. 22 (1932) , to which could be assigned fact-finding functions subject to review in Article III courts, the fount of the administrative agency system. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76–86 (1982) . According to the plurality, the act vested too much judicial power in the bankruptcy courts to treat them like agencies, and it limited the review of Article III courts too much. 63 458 U.S. at 92, 105–13, 113–16 (Justice White, joined by Chief Justice Burger and Justice Powell). 64 Ex parte Bakelite Corp., 279 U.S. 438 (1929) , was, after all, a unanimous opinion and did not long survive. 65 In particular, the Federal Magistrates Act of 1968, under which judges may refer certain pretrial motions and the trial of certain matters to persons appointed to a specific term, was threatened. Pub. L. No. 90-578, 82 Stat. 1108, as amended, 28 U.S.C. §§ 631 -639. See United States v. Radios, 447 U.S. 667 (1980) ; Mathews v. Weber, 423 U.S. 261 (1976) . 66 Pub. L. No. 98-353, 98 Stat. 333, judiciary provisions at 28 U.S.C. §§ 151 et seq . 67 See 28 U.S.C. § 157 . 68 492 U.S. 33 (1989) . 69 See Seventh Amendment, Cases at Common law, infra. 70 564 U.S. ___, No. 10-179, slip op. (2011) . 71 The Court noted that the claim “. . . is not a matter that can be pursued only by grace of the other branches . . . or one that 'historically could have been determined exclusively by' those branches . . . . It does not 'depend[] on the will of Congress’s . . . ; Congress has nothing to do with it. [It] . . . does not flow from a federal statutory scheme . . . . [And it] is not 'completely dependent upon' adjudication of a claim created by federal law . . . .” 564 U.S. ___, No. 10-179, slip op. at 27 (2011) (citations omitted). The Court also noted that filing of a claim in bankruptcy court (here, a defamation claim) did not constitute consent to a counter-claim, as the claimant had nowhere else to go to obtain recovery. Id. 72 575 U.S. ___, No. 13-935, slip op. (2015) . 73 See id. at 20 . 74 473 U.S. 568 (1985) . 75 478 U.S. 833 (1986) . 76 492 U.S. 33 (1989) . 77 Contrast the Court's approach to Article III separation of powers issues with the more rigid approach enunciated in INS v. Chadha and Bowsher v. Synar , involving congressional incursions on executive power. 78 473 U.S. at 589 . 79 CFTC v. Schor , 478 U.S. at 851 (summarizing the Thomas rule). 80 Thomas , 473 U.S. at 590 . 81 Thomas , 473 U.S. at 591, 592 (quoting Crowell v. Benson, 285 U.S. 22, 54 (1932) ). 82 473 U.S. at 594 . 83 Cf. Union Carbide , 473 U.S. at 591 (fact that “FIFRA arbitration scheme incorporates its own system of internal sanctions and relies only tangentially, if at all, on the Judicial Branch for enforcement” cited as lessening danger of encroachment on “Article III judicial powers” ). 84 See CFTC v. Schor, 478 U.S. 833, 853 (1986) . Notwithstanding Schor's efforts to distinguish between the context presented in that case and the bankruptcy context, the Court, in Wellness International v. Sharif , extended Schor's holding to adjudications of private right claims by bankruptcy courts. See 575 U.S. ___, No. 13-935, slip op. (2015) . Specifically, the Wellness International Court utilized the balancing approach employed by Schor to conclude that allowing bankruptcy courts to decide a fraudulent conveyance claim by consent would not “impermissibly threaten the institutional integrity of the Judicial Branch,” id. at 12 (quoting Schor , 478 U.S. at 851 ), because (1) the underlying class of claims that was being adjudicated by the non-Article III court was “narrow” in nature, resulting in a “de minimis” intrusion on the federal judiciary; (2) the bankruptcy court was ultimately supervised and overseen by a constitutional court and not Congress; and (3) the Court found “no indication” that Congress, in allowing bankruptcy courts to decide with finality certain private right claims, was acting in “an effort to aggrandize itself or humble the Judiciary.” Id. at 13–14 . 85 Granfinanciera , 492 U.S. at 51–55, 55–60 . 86 492 U.S. at 59 n.14 .

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