Article III, Section 1:

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.

Pursuant to its power to “ordain and establish” inferior federal courts, Congress has periodically created courts under Article III to exercise specialized jurisdiction over limited categories of cases. Those tribunals are like other Article III courts in that they exercise “the judicial power of the United States,” and only that power.1 In addition, judges on such courts must be appointed by the President and confirmed by the Senate, must hold office during good behavior subject to removal only by impeachment, and may not have their compensation diminished during their continuance in office.2 While judges on specialized courts must enjoy life tenure on the federal bench during good behavior, like all Article III judges, judges holding lifetime appointments to the U.S. district courts or courts of appeals may serve for limited terms on courts of specialized jurisdiction.3

Several Article III courts of specialized jurisdiction are no longer in operation, either because they were established for a limited time or because they were deemed not to have fulfilled their purposes. An example of the latter was the Commerce Court created by the Mann-Elkins Act of 1910,4 which was given exclusive jurisdiction to enforce certain orders of the Interstate Commerce Commission.5 Another court of specialized jurisdiction was the Emergency Court of Appeals established by the Emergency Price Control Act of January 30, 1942.6 The Emergency Court of Appeals was established during World War II and was designed to operate temporarily to adjudicate matters related to wage and price controls. Composed of selected sitting judges of the United States district courts and circuit courts of appeal, the court was vested with the powers of a district court and granted “exclusive jurisdiction to set aside such regulation, order, or price schedule, in whole or in part, to dismiss the complaint, or to remand the proceeding.” 7 Congress created another specialized court through the Ethics in Government Act.8 That court, a “Special Division” of the U.S. Court of Appeals for the District of Columbia, was charged with appointing an independent counsel to investigate and prosecute charges of illegality in the Executive Branch, upon the request of the Attorney General. It also had certain supervisory powers over the independent counsel.9

Perhaps the most prominent modern example of a specialized Article III court is the U.S. Court of Appeals for the Federal Circuit, established in 1982.10 In many respects, the Federal Circuit resembles the geographic circuit courts of appeals; however, rather than hearing appeals from district courts in a certain area of the country, it has exclusive jurisdiction to hear appeals from the United States Court of Federal Claims, the Federal Merit System Protection Board, the Court of International Trade, the Patent Office in patent and trademark cases, and in various contract and tort cases. One of those bodies, the Court of International Trade, is also an Article III specialty court.11 The Judicial Panel on Multidistrict Litigation, staffed by federal judges from other courts, is another Article III court of specialized jurisdiction authorized to transfer related civil actions pending in different judicial districts to a single district for trial.12

To facilitate the gathering of foreign intelligence information through electronic surveillance, search and seizure and other means, Congress authorized a specialized court in the Foreign Intelligence Surveillance Act of 1978.13 Known as the FISA Court, this tribunal is composed of seven regular federal judges appointed by the Chief Justice for limited terms and receives applications from the United States and to issue warrants for intelligence activities. Another specialized court, the Alien Terrorist Removal Court, was established to review ex parte applications from the Department of Justice to order removal of certain aliens from the United States based on classified information.14

Footnotes

1

U.S. Const. art. III, § 1

2

Id.; see also ArtIII.S1.10.2.1 Overview of Good Behavior Clause.

3

See, e.g., Pub. L. No. 95–511, 92 Stat. 1788 (codified at 50 U.S.C. § 1803) (allowing for designation of district court judges to serve nonrenewable seven-year terms on the Foreign Intelligence Surveillance Act Court); 8 U.S.C. §1532(a) (allowing for designation of district court judges to serve five-year terms on the U.S. Alien Terrorist Removal Court).

4

Ch. 309, 36 Stat. 539.

5

The Commerce Court operated for less than three years before Congress abolished it in 1913. See ArtIII.S1.8.5 Congressional Power to Abolish Federal Courts.

6

56 Stat. 23, §§ 31–33.

7

56 Stat. 31. The Supreme Court upheld the exclusive grant of jurisdiction to the court in Lockerty v. Philips, 319 U.S. 182 (1943). A similar court was created to be used in the enforcement of the economic controls imposed by President Richard Nixon in 1971. Pub. L. No. 92–210, 85 Stat. 743, 211(b). Although the controls ended in 1974, 12 U.S.C. § 1904 note, Congress continued the Temporary Emergency Court of Appeals and gave it new jurisdiction. Emergency Petroleum Allocation Act of 1973, Pub. L. No. 93–159, 87 Stat. 633 (codified at 15 U.S.C. § 754) (incorporating judicial review provisions of the Economic Stabilization Act). The Court was abolished, effective March 29, 1993, by Pub. L. No. 102–572, 106 Stat. 4506. Another similar specialized court was created by Section 209 of the Regional Rail Reorganization Act, Pub. L. No. 93–226, 87 Stat. 999 (codified at 45 U.S.C. § 719), to review the final system plan under the Act. Regional Rail Reorganization Act Cases (Blanchette v. Con. Gen. Ins. Corp.), 419 U.S. 102 (1974).

8

Ethics in Government Act, Title VI, Pub. L. No. 95–521, 92 Stat. 1867 (codified as amended at 28 U.S.C. §§ 591–599). The Chief Justice designated three regular federal judges to comprise the court. Only one of the judges could be from the D.C. Circuit. 28 U.S.C. § 49.

9

The constitutionality of the Special Division was upheld in Morrison v. Olson, 487 U.S. 654, 670–85 (1988). Authority for the court expired in 1999 under a sunset provision. Pub. L. No. 103–270, § 2, 108 Stat. 732 (1994).

10

Federal Courts Improvement Act of 1982, Pub. L. No. 97–164, 96 Stat. 37 (codified at 28 U.S.C. § 1295). Among other things, the Federal Circuit assumed the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals. See ArtIII.S1.8.5 Congressional Power to Abolish Federal Courts.

11

The Court of International Trade began life as the Board of General Appraisers, became the United States Customs Court in 1926, was declared an Article III court in 1956, and came to its present form and name in 1980. Pub. L. No. 96–417, 94 Stat. 1727.

12

28 U.S.C. § 1407.

13

Pub. L. No. 95–511, 92 Stat. 1788 (codified at 50 U.S.C. § 1803). The Foreign Intelligence Surveillance Act of 1978 also established an appellate court called the Foreign Intelligence Surveillance Court of Review, which reviews certain FISA Court orders. See id. § 1803(b).

14

8 U.S.C. §1532(a). The U.S. Alien Terrorist Removal Court has yet to conduct any proceedings.