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44 Mercer L. Rev. 825 (1992-1993)
Article II Courts

handle is hein.journals/mercer44 and id is 827 raw text is: Article II Courts by David J. Bederman* It is understandable that a reader may be puzzled by the title of this study. American lawyers are undoubtedly familiar with the notion of constitutional courts established under Article III of the Constitution.1 They also are likely to recall another class of federal tribunals, created by virtue of the legislative authority vested in Congress by Article I of the Constitution.' However, few lawyers and scholars are aware that there ex- ists a third class of courts created by the Constitution. These are execu- tive courts that, from time to time in the Republic's history, have been formed to administer justice, in times of war or civil unrest, over territo- ries occupied by American armed forces. There is no question that these tribunals have been considered anoma- lous, as aberrations of established constitutional order. Indeed, little in- tellectual effort has been expended in examining the constitutional place of presidential courts. In the midst of war or its aftermath, few were brave enough to criticize the President's establishment of courts of law. Fewer still were prepared to argue that his power should be limited by other provisions of the Constitution. Instead, a pattern of judicial defer- ence begun with the establishment of the first such court in the Mexican War of 1846 has persisted to this day. Exceptions to this trend have been noted, and it may even be apparent that a new constitutional practice of Article II courts has evolved. Nonetheless, the President's power in this field has gone virtually unchallenged. This Article carefully examines the creation, operation, and jurispru- dence of executive courts. As a first step, however, it is essential to accu- rately define what is meant when one refers to an Article II court. This * Assistant Professor of Law, Emory University School of Law. Princeton University (A.B., 1983); London School of Economics (M.Sc., 1984); University of Virginia (J.D., 1987); Hague Academy of International Law (Dip., 1989). I am grateful for the comments gener- ated by the Emory University School of Law Faculty Colloquium, and especially for the advice of Professor Charles A. Shanor. All errors and omissions are mine, of course. 1. U.S. CONsT. art. III. 2. Id. art. I.