James Durling (Yale University, Law School, Students) has posted The District of Columbia and Article III on SSRN. Here is the abstract:
Today, nearly everyone assumes that the District of Columbia is an exception to Article III. They assume, in other words, that Congress may create non-Article III courts in the District and staff them with judges who lack salary protections and life tenure. Indeed, forty-five years ago, the Supreme Court specifically upheld the newly created non-Article III court system in the capital. And since that decision, nearly every major scholar of federal courts has accepted the District’s Article III exceptionalism.
This Article challenges the current judicial and scholarly consensus. Drawing upon extensive historical research, it shows that both the original meaning of the Seat of Government Clause and 170 years of historical practice make clear that Article III’s judicial protections apply fully to the District. It further shows that the various functional justifications typically used to defend adjudication by non-Article III tribunals do not apply to the courts in the capital. In short, this Article establishes that the current D.C. local court system is unconstitutional.
For the thousands of D.C. residents who have to go before non-Article III courts each year, this conclusion should be significant in its own right. Indeed, the history of non-Article III courts in the District reveals the concerning political influence of crime and race on Congress’s decision to create non-Article III tribunals in the capital. But this Article’s conclusion also has broader implications outside the Seat of Government. Perhaps most importantly, it identifies a new principle—Article III’s “one-way ratchet”—that would limit the use of non-Article III tribunals in other contexts. And more broadly, the history of the District of Columbia’s relationship to Article III may provide us with new substantive and methodological insights on our Article III history and jurisprudence.