David Bederman

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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 exists a third class of courts created by the Constitution. These are executive 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 territories occupied by American armed forces.

There is no question that these tribunals have been considered anomalous, as aberrations of established constitutional order. Indeed, little intellectual 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 deference 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 jurisprudence of executive courts. As a first step, however, it is essential to accurately define what is meant when one refers to an Article II court. This inquiry places in sharp focus the traditional constitutional dichotomy between Article III "constitutional" courts and Article I legislative tribunals. Adding presidential courts to this matrix does not upset the analysis used heretofore; it merely places a greater premium on identifying the constitutional source of power for creating the court in question.

Once this Article clarifies what is and what is not an executive court, it will introduce the historical examples of this institution. I have identified twelve tribunals that satisfy the definition propounded here. Although most date from the Civil War and before, four of them operated in this century, and one of them rendered a judgment no more than twelve years ago. Undoubtedly others exist that my research has not revealed. Each of these courts shared one thing in common: they were established by federal authorities occupying territory as a result of armed conflict. The constitutional problems raised by belligerent occupation, including the maintenance of law and order and the establishment of justice, will be considered since this provided the practical imperative for the exercise of the President's power to constitute judicial tribunals. How the President exercised and delegated this power is also significant. More important, however, is to understand how the power was limited, whether by the President's own restraint, judicial review, or the passage of time and the termination of hostilities.

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