Lead Opinion
delivered the opinion of the Court.
The question presented is whether the Commodity Exchange Act (CEA or Act), 7 U. S. C. §1 et seq., empowers the Commodity Futures Trading Commission (CFTC or Commission) to entertain state law counterclaims in repara
I
The CEA broadly prohibits fraudulent and manipulative conduct in connection with commodity futures transactions. In 1974, Congress “overhauled]” the Act in order to institute a more “comprehensive regulatory structure to oversee the volatile and esoteric futures trading complex.” H. R. Rep. No. 93-975, p. 1 (1974). See Pub. L. 93-463, 88 Stat. 1389. Congress also determined that the broad regulatory powers of the CEA were most appropriately vested in an agency which would be relatively immune from the “political winds that sweep Washington.” H. R. Rep. No. 93-975, at 44, 70. It therefore created an independent agency, the CFTC, and entrusted to it sweeping authority to implement the CEA.
Among the duties assigned to the CFTC was the administration of a reparations procedure through which disgruntled customers of professional commodity brokers could seek redress for the brokers’ violations of the Act or CFTC regulations. Thus, § 14 of the CEA, 7 U. S. C. § 18 (1976 ed.),
In conformance with the congressional goal of promoting efficient dispute resolution, the CFTC promulgated a regulation in 1976 which allows it to adjudicate counterclaims “arising] out of the transaction or occurrence or series of transactions or occurrences set forth in the complaint.” Id., at 3995, 4002 (codified at 17 CFR § 12.23(b)(2) (1983)). This permissive counterclaim rule leaves the respondent in a reparations proceeding free to seek relief against the reparations complainant in other fora.
The instant dispute arose in February 1980, when respondents Schor and Mortgage Services of America, Inc., invoked the CFTC’s reparations jurisdiction by filing complaints against petitioner ContiCommodity Services, Inc. (Conti), a commodity futures broker, and Richard L. Sandor, a Conti employee.
Before receiving notice that Schor had commenced the reparations proceeding, Conti had filed a diversity action in Federal District Court to recover the debit balance. ContiCommodity Services, Inc. v. Mortgage Services of America, Inc., No. 80-C-1089 (ND Ill., filed Mar. 4, 1980). Schor
Although the District Court declined to stay or dismiss the suit, see id., at 15,16, Conti voluntarily dismissed the federal court action and presented its debit balance claim by way of a counterclaim in the CFTC reparations proceeding. See id., at 29-32. Conti denied violating the CEA and instead insisted that the debit balance resulted from Schor’s trading, and was therefore a simple debt owed by Schor. Schor v. Commodity Futures Trading Comm’n, 239 U. S. App. D. C. 159, 162,
After discovery, briefing, and a hearing, the Administrative Law Judge (ALJ) in Schor’s reparations proceeding ruled in Conti’s favor on both Schor’s claims and Conti’s counterclaims. After this ruling, Schor for the first time challenged the CFTC’s statutory authority to adjudicate Conti’s counterclaim. See id., at 62a. The ALJ rejected Schor’s challenge, stating himself “bound by agency regulations and published agency policies.” Id., at 62a-63a. The Commission declined to review the decision and allowed it to become final, id., at 50a-52a, at which point Schor filed a petition for review with the Court of Appeals for the District of Columbia Circuit. Prior to oral argument, the Court of Appeals, sua sponte, raised the question whether CFTC could constitutionally adjudicate Conti’s counterclaims in light of Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,
After briefing and argument, the Court of Appeals upheld the CFTC’s decision on Schor’s claim in most respects, but ordered the dismissal of Conti’s counterclaims on the ground that “the CFTC lacks authority (subject matter competence) to adjudicate” common law counterclaims. 239 U. S. App. D. C., at 161,
After examining the CEA and its legislative history, the court concluded that Congress had no “clearly expressed” or “explicit” intention to give the CFTC constitutionally questionable jurisdiction over state common law counterclaims. See 239 U. S. App. D. C., at 166, 178,
The Court of Appeals denied rehearing en banc by a divided vote. In a dissenting statement, Judge Wald, joined by Judge Starr, urged that rehearing be granted because the panel’s holding would “resul[t] in a serious evisceration of a congressionally crafted scheme for compensating victims of Commodity Futures Trading Act . . . violations” and would in practical effect “decimat[e]” the efficacy of this “faster and less expensive alternative forum.” App. to Pet. for Cert, in No. 85-621, p. 71a. This Court granted the CFTC’s petition for certiorari, vacated the Court of Appeals’ judgment, and remanded the case for further consideration in light of Thomas, supra, at 582-593.
On remand, the Court of Appeals reinstated its prior judgment. It reaffirmed its earlier view that Northern Pipeline drew into serious question the Commission’s authority to decide debit-balance counterclaims in reparations proceedings; concluded that nothing in Thomas altered that view; and again held that, in light of the constitutional problems posed by the CFTC’s adjudication of common law counterclaims, the CEA should be construed to authorize the CFTC to adjudicate only counterclaims arising from violations of the Act or CFTC regulations. See 248 U. S. App. D. C. 155, 157-158,
II
The Court of Appeals was correct in its understanding that “[f]ederal statutes are to be so construed as to avoid serious doubt of their constitutionality.” Machinists v. Street,
Assuming that the Court of Appeals correctly discerned a “serious” constitutional problem in the CFTC’s adjudication of Conti’s counterclaim, we nevertheless believe that the court was mistaken in finding that the CEA could fairly be read to preclude the CFTC’s exercise of jurisdiction over that counterclaim. Our examination of the CEA and its legislative history and purpose reveals that Congress plainly intended the CFTC to decide counterclaims asserted by respondents in reparations proceedings, and just as plainly delegated to the CFTC the authority to fashion its counterclaim jurisdiction in the manner the CFTC determined necessary to further the purposes of the reparations program.
Congress’ assumption that the CFTC would have the authority to adjudicate counterclaims is evident on the face of
We can find no basis in the language of the statute or its legislative history for the distinction posited by the Court of Appeals. Congress empowered the CFTC “to make and promulgate such rules and regulations as, in the judgment of the Commission, are reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes of [the CEA].” 7 U. S. C. § 12a(5) (emphasis added). The language of the congressional Report that specifically commented on the scope of the CFTC’s authority over counterclaims unambiguously demonstrates that, consistent with the sweeping authority Congress delegated to the CFTC generally, Congress intended to vest in the CFTC the power to define the scope of the counterclaims cognizable in reparations proceedings:
*843 “Counterclaims will be recognized in the [reparations] proceedings ... on such terms and under such circumstances as the Commission may prescribe by regulation. It is the intent of the Committee that the Commission will promulgate appropriate regulations to implement this section.” H. R. Rep. No. 93-975, p. 23 (1974).
Moreover, quite apart from congressional statements of intent, the broad grant of power in § 12a(5) clearly authorizes the promulgation of regulations providing for adjudication of common law counterclaims arising out of the same transaction as a reparations complaint because such jurisdiction is necessary, if not critical, to accomplish the purposes behind the reparations program.
Reference to the instant controversy illustrates the crippling effect that the Court of Appeals’ restrictive reading of the CFTC’s counterclaim jurisdiction would have on the efficacy of the reparations remedy. The dispute between Schor and Conti is typical of the disputes adjudicated in reparations proceedings: a customer and a professional commodities broker agree that there is a debit balance in the customer’s account, but the customer attributes the deficit to the broker’s alleged CEA violations and the broker attributes it to the customer’s lack of success in the market. The customer brings a reparations claim; the broker counterclaims for the amount of the debit balance. In the usual case, then, the counterclaim “arises out of precisely the same course of events” as the principal claim and requires resolution of many of the same disputed factual issues. Friedman v. Dean Witter & Co., [1980-1982 Transfer Binder] CCH
Under the Court of Appeals’ approach, the entire dispute may not be resolved in the administrative forum. Consequently, the entire dispute will typically end up in court, for when the broker files suit to recover the debit balance, the customer will normally be compelled either by compulsory counterclaim rules or by the expense and inconvenience of
As our discussion makes manifest, the CFTC’s long-held position that it has the power to take jurisdiction over counterclaims such as Conti’s is eminently reasonable and well within the scope of its delegated authority. Accordingly, as the CFTC’s contemporaneous interpretation of the statute it is entrusted to administer, considerable weight must be accorded the CFTC’s position. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
First, the CFTC issued the counterclaim rule currently in force at the time that the reparations program first took effect and has never altered that rule. The only “inconsistency” identified by the Court of Appeals was a proposed rule, published by the Commission for notice and comment, that would have allowed a narrower class of counterclaims. 40 Fed. Reg. 55666-55667, 55672-55673 (1975). It goes without saying that a proposed regulation does not represent an agency’s considered interpretation of its statute and that an agency is entitled to consider alternative interpretations before settling on the view it considers most sound. Indeed, it would be antithetical to the purposes of the notice and comment provisions of the Administrative Procedure Act, 5 U. S. C. § 553, to tax an agency with “inconsistency” whenever it circulates a proposal that it has not firmly decided to put into effect and that it subsequently reconsiders in response to public comment.
Second, the Court of Appeals was incorrect to state on the facts of this case that the CFTC’s expertise was not deserving of deference because of the “statutory interpretation-jurisdictional” nature of the question at issue. 239 U. S. App. D. C., at 176,
Such deference is especially warranted here, for Congress has twice amended the CEA since the CFTC declared by regulation that it would exercise jurisdiction over counterclaims arising out of the same transaction as the principal
Moreover, we need not, as the Court of Appeals argued, rely simply on congressional “silence” to find approval of the CFTC’s position in the subsequent amendments to the CEA, see 239 U. S. App. D. C., at 177,
“The Commission may promulgate such rules, regulations, and orders as it deems necessary or appropriate for the efficient and expeditious administration of this section. Notwithstanding any other provision of law, such rules, regulations, and orders may prescribe, or otherwise condition, without limitation, . . . the nature and scope of. . . counterclaims,. . . and all other matters governing proceedings before the Commission under this section.” 7 U. S. C. § 18(b).
See also H. R. Rep. No. 97-565, pt. 1, p. 55 (1982) (“[T]he reparations program seeks to pass upon the whole controversy surrounding each claim, including counter-claims arising out of the same set of facts”). Where, as here, “Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation,” we cannot but deem that construction virtually conclusive. See Red Lion Broadcasting Co., Inc. v. FCC, supra, at 380-381. See also Bell v. New Jersey,
1 — 1 1 — 1 H
Article III, §1, directs that 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,” and provides that these federal courts shall be staffed by judges who hold office during good behavior, and whose compensation shall not be diminished during tenure in office. Schor claims that these provisions prohibit Congress from authorizing the initial adjudication of common law counterclaims by the CFTC, an administrative agency whose adjudicatory officers do not enjoy the tenure and salary protections embodied in Article III.
Although our precedents in this area do not admit of easy synthesis, they do establish that the resolution of claims such as Schor’s cannot turn on conclusory reference to the language of Article III. See, e. g., Thomas,
A
Article III, § 1, serves both to protect “the role of the independent judiciary within the constitutional scheme of tripartite government,” Thomas, supra, at 583, and to safeguard litigants’ “right to have claims decided before judges who are free from potential domination by other branches of government.” United States v. Will,
Our precedents also demonstrate, however, that Article III does not confer on litigants an absolute right to the plenary consideration of every nature of claim by an Article III court. See, e. g., Thomas, supra, at 583; Crowell v. Benson, supra. Moreover, as a personal right, Article Ill’s guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil
In the instant cases, Schor indisputably waived any right he may have possessed to the full trial of Conti’s counterclaim before an Article III court. Schor expressly demanded that Conti proceed on its counterclaim in the reparations proceeding rather than before the District Court, see App. 13, 19, and was content to have the entire dispute settled in the forum he had selected until the AL J ruled against him on all counts; it was only after the ALJ rendered a decision to which he objected that Schor raised any challenge to the CFTC’s consideration of Conti’s counterclaim.
Even were there no evidence of an express waiver here, Schor’s election to forgo his right to proceed in state or federal court on his claim and his decision to seek relief instead in a CFTC reparations proceeding constituted an effective waiver. Three years before Schor instituted his reparations action, a private right of action under the CEA was explicitly recognized in the Circuit in which Schor and Conti filed suit in District Court. See Hirk v. Agri-Research Council, Inc.,
B
As noted above, our precedents establish that Article III, § 1, not only preserves to litigants their interest in an impartial and independent federal adjudication of claims within the judicial power of the United States, but also serves as “an inseparable element of the constitutional system of checks and balances.” Northern Pipeline, supra, at 58. See also United States v. Will, supra, at 217. Article III, § 1, safeguards the role of the Judicial Branch in our tripartite system by barring congressional attempts “to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating” constitutional courts, National Insurance Co. v. Tidewater Co.,
In determining the extent to which a given congressional decision to authorize the adjudication of Article III business in a non-Article III tribunal impermissibly threatens the institutional integrity of the Judicial Branch, the Court has declined to adopt formalistic and unbending rules. Thomas,
An examination of the relative allocation of powers between the CFTC and Article III courts in light of the considerations given prominence in our precedents demonstrates that the congressional scheme does not impermissibly intrude
In the instant cases, we are likewise persuaded that there is little practical reason to find that this single deviation from the agency model is fatal to the congressional scheme. Aside from its authorization of counterclaim jurisdiction, the CEA leaves far more of the “essential attributes of judicial power” to Article III courts than did that portion of the Bankruptcy Act found unconstitutional in Northern Pipeline. The CEA scheme in fact hews closely to the agency model approved by the Court in Crowell v. Benson,
The CFTC, like the agency in Crowell, deals only with a “particularized area of law,” Northern Pipeline, supra, at 85, whereas the jurisdiction of the bankruptcy courts found unconstitutional in Northern Pipeline extended to broadly “all civil proceedings arising under title 11 or arising in or related
Of course, the nature of the claim has significance in our Article III analysis quite apart from the method prescribed for its adjudication. The counterclaim asserted in this litigation is a “private” right for which state law provides the rule of decision. It is therefore a claim of the kind assumed to be at the “core” of matters normally reserved to Article III courts. See, e. g., Thomas, supra, at 587; Northern Pipeline,
We have explained that “the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that ‘could
It is clear that Congress has not attempted to “withdraw from judicial cognizance” the determination of Conti’s right to
When Congress authorized the CFTC to adjudicate counterclaims, its primary focus was on making effective a specific and limited federal regulatory scheme, not on allocating jurisdiction among federal tribunals. Congress intended to create an inexpensive and expeditious alternative forum through which customers could enforce the provisions of the CEA against professional brokers. Its decision to endow the CFTC with jurisdiction over such reparations claims is readily understandable given the perception that the CFTC was relatively immune from political pressures, see H. R. Rep. No. 93-975, pp. 44, 70 (1974), and the obvious exper
It also bears emphasis that the CFTC’s assertion of counterclaim jurisdiction is' limited to that which is necessary to make the reparations procedure workable. See 7 U. S. C. § 12a(5). The CFTC adjudication of common law counterclaims is incidental to, and completely dependent upon, adjudication of reparations claims created by federal law, and in actual fact is limited to claims arising out of the same transaction or occurrence as the reparations claim.
In such circumstances, the magnitude of any intrusion on the Judicial Branch can only be termed de minimis. Conversely, were we to hold that the Legislative Branch may not permit such limited cognizance of common law counterclaims at the election of the parties, it is clear that we would “defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task.” Crowell v. Benson, supra, at 46. See also Thomas, supra, at 583-584. We do not think Article III compels this degree of prophylaxis.
Nor does our decision in Bowsher v. Synar, ante, p. 714, require a contrary result. Unlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch. Instead, the separation of powers question presented in this litigation is whether Congress impermissibly undermined, without appreciable ex
In so doing, we have also been faithful to our Article III precedents, which counsel that bright-line rules cannot effectively be employed to yield broad principles applicable in all Article III inquiries. See, e. g., Thomas,
C
Schor asserts that Article III, § 1, constrains Congress for reasons of federalism, as well as for reasons of separation of powers. He argues that the state law character of Conti’s counterclaim transforms the central question in this litigation from whether Congress has trespassed upon the judicial powers of the Federal Government into whether Congress has invaded the prerogatives of state governments.
At the outset, we note that our prior precedents in this area have dealt only with separation of powers concerns, and have not intimated that principles of federalism impose limits on Congress’ ability to delegate adjudicative functions to non-Article III tribunals. This absence of discussion regarding federalism is particularly telling in Northern Pipeline, where the Court based its analysis solely on the separation of powers principles inherent in Article III despite the fact that the claim sought to be adjudicated in the bankruptcy court was
Even assuming that principles of federalism are relevant to Article III analysis, however, we are unpersuaded that those principles require the invalidation of the CFTC’s counterclaim jurisdiction. The sole fact that Conti’s counterclaim is resolved by a federal rather than a state tribunal could not be said to unduly impair state interests, for it is established that a federal court could, without constitutional hazard, decide a counterclaim such as the one asserted here under its ancillary jurisdiction, even if an independent jurisdictional basis for it were lacking. See, e. g., Baker v. Gold Seal Liquors,
Schor argues that those Framers opposed to diversity jurisdiction in the federal courts acquiesced in its inclusion in Article III only because they were assured that the federal judiciary would be protected by the tenure and salary provisions of Article III. He concludes, in essence, that to protect this constitutional compact, Article III should be read to absolutely preclude any adjudication of state law claims by federal decisionmakers that do not enjoy the Article III salary and tenure protections. We are unpersuaded by Schor’s novel theory, which suffers from a number of flaws, the most important of which is that Schor identifies no historical support for the critical link he posits between the provisions of Article III that protect the independence of the federal judiciary and those provisions that define the extent of the judiciary’s jurisdiction over state law claims.
It is so ordered.
Notes
Respondents’ suit was governed by the Commodity Futures Trading Commission Act of 1974, Pub. L. 93-463, 88 Stat. 1389. Congress again significantly revised the Act in early 1983. See Futures Trading Act of 1982, Pub. L. 97-444, 96 Stat. 2294. The changes effected by the 1983 amendments that are relevant to CFTC proceedings became effective only as of May 1983, and therefore do not control in this proceeding. See § 239, 96 Stat. 2327.
Two complaints, relating to separate trading accounts, were filed on behalf of Schor and the mortgage banking company, Mortgage Services of America, Inc., of which Schor was president and 90% shareholder. The complaints contained virtually identical allegations and were consolidated at the administrative level. The Court of Appeals also consolidated the two separate petitions for review of the CFTC’s final reparation order filed by Schor and Mortgage Services of America, Inc. Because the legal issues involved in the two actions are for all relevant purposes identical, we refer to Schor and Mortgage Services of America, Inc., jointly as “Schor,” and to ContiCommodity Services, Inc., and Sandor jointly as “Conti.”
Dissenting Opinion
with whom Justice Marshall joins, dissenting.
Article III, §1, of the Constitution provides that “[t]he 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.” It further specifies that the federal judicial power must be exercised by judges who “shall hold their Offices during good Behaviour, and [who] shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”
On its face, Article III, § 1, seems to prohibit the vesting of any judicial functions in either the Legislative or the Executive Branch. The Court has, however, recognized three narrow exceptions to the otherwise absolute mandate of Article III: territorial courts, see, e. g., American Ins. Co. v. Canter,
I
The Framers knew that “[t]he accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands,
The Framers also understood that a principal benefit of the separation of the judicial power from the legislative and executive powers would be the protection of individual litigants from decisionmakers susceptible to majoritarian pressures. Article Ill’s salary and tenure provisions promote impartial adjudication by placing the judicial power of the United States “in a body of judges insulated from majoritarian pressures and thus able to enforce [federal law] without fear of reprisal or public rebuke.” United States v. Raddatz,
“[i]f the power of making [periodic appointments] was committed either to the Executive or Legislature, there would, be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the People, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.” Ibid.
“Next to permanency in office,” Hamilton added, “nothing can contribute more to the independence of the Judges than a fixed provision for their support” because “a power over a man's subsistence amounts to a power over his will.” Id., at 548 (emphasis in original). See also United States v. Will,
These important functions of Article III are too central to our constitutional scheme to risk their incremental erosion. The exceptions we have recognized for territorial • courts, courts-martial, and administrative courts were each based on “certain exceptional powers bestowed upon Congress by the Constitution or by historical consensus.” Northern Pipeline, supra, at 70 (opinion of Brennan, J.). Here, however, there is no equally forceful reason to extend further these exceptions to situations that are distinguishable from
More than a century ago, we recognized that Congress may not “withdraw from [Article III] judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty. ” Murray’s Lessee,
The Court states that in reviewing Article III challenges, one of several factors we have taken into account is “the concerns that drove Congress to depart from the requirements of Article III.” Ante, at 851. The Court identifies the desire of Congress “to create an inexpensive and expeditious alternative forum through which customers could enforce the provisions of the CEA against professional brokers” as the motivating congressional concern here. Ante, at 855. The Court further states that “[i]t was only to ensure the effectiveness of this scheme that Congress authorized the CFTC to assert jurisdiction over common-law counterclaims^] . . . absent the CFTC’s exercise of that authority, the purposes of the reparations procedure would have been confounded.” Ante, at 856. Were we to hold that the CFTC’s authority to decide common-law counterclaims offends Article III, the Court declares, “it is clear that we would ‘defeat the obvious purpose of the legislation.’” Ibid. Article III, the Court concludes, does not “compe[l] this degree of prophylaxis.” Ibid.
I disagree — Article Ill’s prophylactic protections were intended to prevent just this sort of abdication to claims of legislative convenience. The Court requires that the legislative interest in convenience and efficiency be weighed against the competing interest in judicial independence. In doing so, the Court pits an interest the benefits of which are immediate, concrete, and easily understood against one, the benefits of which are almost entirely prophylactic, and thus often seem remote and not worth the cost in any single case. Thus, while this balancing creates the illusion of objectivity and ineluctability, in fact the result was foreordained, because the balance is weighted against judicial independence. See Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L. J. 197, 221-222. The danger of the Court’s balancing approach is, of course,. that as individual cases accumulate in which the
Perhaps the resolution of reparations claims such as respondents’ may be accomplished more conveniently under the Court’s decision than under my-approach, but the Framers foreswore this sort of convenience in order to preserve freedom. As we explained in INS v. Chadha,
“The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. . . . With all the obvious flaws of delay [and] untidiness ... , we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”
Moreover, in Bowsher v. Synar, ante, p. 714, we rejected the appellant’s argument that legislative convenience saved the constitutionality of the assignment by Congress to the Comptroller General of essentially executive functions, stating: “‘[T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives — or the hallmarks — of democratic government . . . .’” Ante, at 736 (quoting Chadha, supra, at 944). We recognized that “‘[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.’” Ante, at 727 (quoting Chadha, supra, at 951). Despite the “conflicts, confusion, and discordance” that separation of powers may at times generate, ante, at
It is impossible to reconcile the radically different approaches the Court takes to separation of powers in this litigation and in Bowsher. The Framers established three coequal branches of government and intended to preserve each from encroachment by either of the others. The Constitution did not grant Congress the general authority to bypass the Judiciary whenever Congress deems it advisable, any more than it granted Congress the authority to arrogate to itself executive functions.
Ill
According to the Court, the intrusion into the province of the Federal Judiciary caused by the CFTC’s authority to adjudicate state-law counterclaims is insignificant, both because the CFTC shares in, rather than displaces, federal district court jurisdiction over these claims and because only a very narrow class of state-law issues are involved. The “sharing” justification fails under the reasoning used by the Court to support the CFTC’s authority. If the administrative reparations proceeding is so much more convenient and efficient than litigation in federal district court that abrogation of Article Ill’s commands is warranted, it seems to me that complainants would rarely, if ever, choose to go to district court in the first instance. Thus, any “sharing” of jurisdiction is more illusory than real.
More importantly, the Court, in emphasizing that this litigation will permit solely a narrow class of state-law claims to be decided by a non-Article III court, ignores the fact that it establishes a broad principle. The decision today may authorize the administrative adjudication only of state-law claims that stem from the same transaction or set of facts that allow the customer of a professional commodity broker to initiate reparations proceedings before the CFTC, but the
IV
The Court’s reliance on Schor’s “consent” to a non-Article III tribunal is also misplaced. The Court erroneously suggests that there is a clear division between the separation of powers and the impartial adjudication functions of Article III. Ante, at 848. The Court identifies Article Ill’s structural, or separation-of-powers, function as preservation of the Judiciary’s domain from encroachment by another branch. Ante, at 850. The Court identifies the impartial adjudication function as the protection afforded by Article III to individ
In my view, the structural and individual interests served by Article III are inseparable. The potential exists for individual litigants to be deprived of impartial decisionmakers only where federal officials who exercise judicial power are susceptible to congressional and executive pressure. That is, individual litigants may be harmed by the assignment of judicial power to non-Article III federal tribunals only where the Legislative or Executive Branches have encroached upon judicial authority and have thus threatened the separation of powers. The Court correctly recognizes that to the extent that Article Ill’s structural concerns are implicated by a grant of judicial power to a non-Article III tribunal, “the parties cannot by consent cure the constitutional difficulty for the same reason that the parties by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations imposed by Article III, §2.” Ante, at 851. Because the individual and structural interests served by Article III are coextensive, I do not believe that a litigant may ever waive his right to an Article III tribunal where one is constitutionally required. In other words, consent is irrelevant to Article III analysis.
V
Our Constitution unambiguously enunciates a fundamental principle — that the “judicial Power of the United States” be reposed in an independent Judiciary. It is our obligation zealously to guard that independence so that our tripartite system of government remains strong and that individuals continue to be protected against decisionmakers subject to majoritarian pressures. Unfortunately, today the Court forsakes that obligation for expediency. I dissent.
The Court also rests its holding on the fact that Congress has not assigned the same sweeping judicial powers to the CFTC that it had assigned to the bankruptcy courts under the Bankruptcy Act of 1978 and that we held violated Article III in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,