Hari Asuri (Columbia Law School) has posted Asymmetric Divestment: The Discord between Jurisdiction Stripping and Non-Article III Adjudication on SSRN. Here is the abstract:
Article III of the Constitution allows Congress to invest federal courts with jurisdiction to hear cases and controversies. This includes the jurisdiction of the lower federal courts, as well as the appellate jurisdiction of the Supreme Court. Congress also has the power to divest federal courts of jurisdiction such that they cannot hear particular subsets of cases and controversies. Congress does so primarily through two tools. The first, jurisdiction stripping, sees Congress pass legislation that removes federal court jurisdiction on claims in toto. The second, non-Article III adjudication, sees Congress pass legislation that divests jurisdiction from article III courts and reinvest that jurisdiction in other bodies like administrative agencies.
This Article examines how courts have developed two distinct siloed bodies of doctrine when it comes to how and when Congress can use these two tools. Generally speaking, Congress can easily and efficaciously pass legislation that creates non-Article III adjudication regimes, while passing effective jurisdiction stripping legislation is difficult in practice. The disconnect in the two doctrinal bodies has incentivized non-Article III adjudication at the expense of jurisdiction stripping. This has created adjudication regimes that evade the constitutional rights of defendants. For example agency defendants can be deprived of jury trial rights, traditional notions of due process, and are subject to rules of civil procedure and evidence less protective than those used in federal courts. The Article thus posits that linking and harmonizing the two doctrines may allow courts to alleviate some of these effects while improving both jurisdiction stripping and non-Article III adjudication as Congressional policy tools.
Very interesting, important, highly recommended!