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Judges and academic commentators debate, often with great vigor, what role to accord the federal judiciary—vis-a-vis state courts, Congress, and the executive. Central to the debate is some shared notion about the special qualities of federal courts. However much authority one might want federal courts to have, we have come to accept that federal judges possess enormous power, often attributed to their constitutionally-accorded qualities of life tenure and no diminution of salary. These extraordinary luxuries give federal judges unusual security. Exempt from the woes that beset other members of federal and state government, federal judges are empowered and in some sense ennobled by their constitutional status. Federal courts and their judges, as created by Article III, are special.
The constitutional grant of federal adjudicatory power to Article III judges appears straightforward. However, the federal courts are not populated only by the remarkable Article III actors described in the constitutional text. There are many other individuals, whose numbers far outstrip those of the federal judges, who have the power to perform adjudicatory functions within the federal system but who possess neither life tenure nor salary guarantees. These individuals bear different titles, such as "administrative law judge," "hearing officer," "magistrate," and "bankruptcy judge." Some work in institutions labeled agencies, while others reside in so-called legislative or "Article I" courts, and still others find their niches within Article III courts themselves. It is quite clear that what these officials do is judge-like. They make factual findings about disputed matters and issue opinions in which legal rules are applied. Moreover, the decisions of these officials constitute a large proportion of the federal adjudicative process. While the Article III civil docket in 1984 had some 250,000 pending cases and 243,000 case dispositions were made, the Social Security Administration alone made 337,459 dispositions. In 1984, there were 515 Article III trial judges and 1121 administrative law judges. In short, there are a large number of non-Article III federal adjudicatory personnel who decide a vast number of federal cases. Moreover, their ranks have recently swelled with the enactment of the 1984 amendments to the Bankruptcy Act and the creation of a new Claims Court.
Perhaps most striking of all is that the United States Supreme Court (an institution one might assume to be the quintessential guardian of Article III-ness) has, in a line of cases dating back almost to the inception of the country, endorsed congressional authority to imbue non-Article III decisionmakers with adjudicatory capacities. Moreover, despite a substantial body of case law devoted to the exegesis of Article III, firm statements about the limits of congressional authority are difficult to make. How are we to reconcile the portentous constitutional provisions empowering federal judges with the growth of an enormous auxiliary of federal judicial personnel? Should we be concerned that federal judicial power is being diminished by the number of federal decisionmakers who lack life tenure and are vulnerable to pressures from their employers? Should we be comforted by the addition of needed personnel and by the flexibility afforded when the employment commitment is less than life tenure? Should we care whether Congress or the executive creates, or the Court condones, the use of non-Article III personnel? These are the questions which this article addresses.
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