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One Supreme CourtSupremacy, Inferiority, and the Judicial Department of the United States$
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James E. Pfander

Print publication date: 2009

Print ISBN-13: 9780195340334

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780195340334.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 22 October 2021

Article III Courts and Article I Tribunals

Article III Courts and Article I Tribunals

(p.45) 3 Article III Courts and Article I Tribunals
One Supreme Court


Oxford University Press

This chapter examines the constitutional provisions that bear on Congress's power to incorporate federal courts, state courts, and Article I tribunals into the federal judicial department. It focuses on the interplay between the terms of Article III that empower Congress to “ordain and establish” inferior federal courts and those of Article I that empower Congress to “constitute tribunals inferior to” the Supreme Court. For the most part, scholars and jurists have assumed that the two provisions overlap—that Article I simply restates Congress's power under Article III to “ordain and establish” federal courts. On such a view, congressional reliance on state courts and Article I tribunals as courts of first instance would seem anomalous; such bodies do not typically employ life-tenured judges and cannot exercise the judicial power of the United States. But when one recognizes that the “tribunals” in Article I may include more than just the lower federal courts in Article III, new possibilities emerge. Article I can be read to empower Congress to assign federal jurisdiction to state courts, appointing them as inferior tribunals. It may also permit Congress to create new Article I tribunals to handle matters outside the scope of the judicial power.

Keywords:   Congress, Constitution, federal courts, state courts, tribunals, Article I, Article III

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