Monday, October 29, 2012

International Trade and Constitutional Law in the USA: Non Article III Courts Encroaching Upon Essential Attributes of Judicial Power Contrary to U.S. Supreme Court Precedents : ITC and Patents

There is no question that the U.S. International Trade Commission or ITC has the power to ban imports of devices to the USA that it sees as threats to domestic trade because of patent infringements established by Article III courts. It is equally clear, however, that the ITC has no Constitutional right to itself determine whether one or more patent infringements have occurred, as this is the legal domain of "real" Article III courts under the U.S. Constitution. Contrary to Supreme Court precedent, "essential attributes of judicial power" are being encroached upon by non-Article III-courts.

We are political centrists and some people mistakenly think we are in favor of excessive government powers. Nothing could be further from the truth, and that is why we are staunchly in favor of a massive reduction of so-called administrative law "courts" such as the ITC, or octopus-like agencies such as the USPTO, as these are increasingly encroaching upon the territory of the real courts, in violation of the U.S. Constitution.

The most recent ITC decisions in the patent field are one example of that.

The ITC is in fact at it again, trying to wreak economic havoc in the patent field. See Samsung infringed four Apple patents, ITC rules, by Hayley Tsukayama at the Washington Post, and Samsung loses another big patent case to Apple, this time at ITC, by Joe Mullin at Ars Technica.

One of the patents found infringed there by the ITC is not even being "practiced" by Apple and can hardly be a threat to domestic trade.

What is the legal basis for having so- called "administrative law judges" in America, where "real" judges are specifically provided for by the Constitution?

So-called "administrative judges" or "Article I judges" are not real judges under the U.S. Constitution but are simply normal civil servants for some agency under the executive or legislative branch of government, people who are increasingly exercising judicial functions in a nation governed by a Constitution that vigorously applies the separation of powers doctrine via Article III, Section 1 of that U.S. Constitution, expressly delegating any and all "judging" authority to the judicial branch of government as follows:
"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."
There is an implicit understanding here that the Supreme Court of the United States -- and inferior courts to it IN THE SAME judicial system, of course -- constitute the American Judiciary, and NOTHING ELSE. Any rational reading of that clause EXCLUDES any inferior courts being created within the auspices of either the legislative or executive branch, since that would contravene not only the above provision but would be contrary to the separation of powers doctrine which serves as the foundation of the U.S. Constitution.

Past Supreme Court precedent on this issue is unnecessarily permissive and has led to confusion, such that administrative courts now regularly overstep the major limitation set by the U.S. Supreme Court, which is that the "essential attributes of judicial power" must stay with Article III courts.

In fact, plaintiffs are increasingly bringing cases before administrative courts precisely to evade "real courts" because those administrative courts are wielding "essential attributes of judicial power" and doing so with impunity, while Supreme Court Justices are busy writing books on law, supporting their spouses in political movements, or traveling the country on lecture tours, rather than doing what they are supposed to be doing, which is overseeing the nation's judiciary and promoting order in the precedents of the legal system, especially in the modern jungle of intellectual property law.

Here is what the Wikipedia writes about Supreme Court dictates on Article I and Article IV courts (we cite to the Wikipedia not for its legal authority but because it poses fewer intellectual property rights issues due to quotation):
"Supreme Court rulings limiting the power of Article I and Article IV tribunals

The concept of a legislative court was first defined by Chief Justice John Marshall in the case of American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511 (1828), which is sometimes referred to as Canter, after a claimant in the case. In this case, a court in what was then the Territory of Florida had made a ruling on the disposition of some bales of cotton that had been recovered from a sunken ship. This clearly fell into the realm of admiralty law, which is part of the federal judicial power according to Article III of the Constitution. Yet the judges of the Florida territorial court had four-year terms, not the lifetime appointments required by Article III of the Constitution. Marshall's solution was to declare that territorial courts were established under Article I of the constitution. As such, they could not exercise the federal judicial power, and therefore the law that placed admiralty cases in their jurisdiction was unconstitutional.
Tenure that is guaranteed by the Constitution is a badge of a judge of an Article III court. The argument that mere statutory tenure is sufficient for judges of Article III courts was authoritatively answered in Ex parte Bakelite Corp.:[5]
... the argument is fallacious. It mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred. Nor has there been any settled practice on the part of Congress which gives special significance to the absence or presence of a provision respecting the tenure of judges. This may be illustrated by two citations. The same Congress that created the Court of Customs Appeals made provision for five additional circuit judges and declared that they should [370 U.S. 530, 597] hold their offices during good behavior; and yet the status of the judges was the same as it would have been had that declaration been omitted. In creating courts for some of the Territories Congress failed to include a provision fixing the tenure of the judges; but the courts became legislative courts just as if such a provision had been included.
In Glidden Co. v. Zdanok, the court made the following statement regarding courts in unincorporated territories:
Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266-267; Balzac v. Porto Rico, 258 U.S. 298, 312-313; cf. Dorr v. United States, 195 U.S. 138, 145, 149, and to the consular courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464-465, 480.
Ever since Canter, the federal courts have been wrestling with the division between legislative and judicial courts. The Supreme Court most thoroughly delineated the permissible scope of Article I tribunals in Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), striking down the statute that created the original U.S. bankruptcy court. The Court noted in that opinion that the framers of the Constitution had developed a scheme of separation of powers which clearly required that the judiciary be kept independent of the other two branches via the mechanism of lifetime appointments. However, the Court noted three situations (based on historical understanding) in which Congress could give judicial power to non-Article III courts:
  1. Courts for non-state areas (U.S. territories and the District of Columbia) in which Congress is acting as both local and national government.
  2. Military courts (or courts-martial), under the historical understanding and clearly laid out exceptions in the Constitution.
  3. Legislative courts established under the premise that, where Congress could have simply given the Executive Branch the power to make a decision, it has the lesser power to create a tribunal to make that decision. This power is limited to adjudication of public rights, such as the settling of disputes between the citizens and the government.
The Court also found that Congress has the power under Article I to create adjunct tribunals, so long as the "essential attributes of judicial power" stay in Article III courts. This power derives from two sources. First, when Congress creates rights, it can require those asserting such rights to go through an Article I tribunal. Second, Congress can create non-Article III tribunals to help Article III courts deal with their workload, but only if the Article I tribunals are under the control of the Article III courts. The bankruptcy courts, as well as the tribunals of magistrate judges who decide some issues in the district courts, fall within this category of "adjunct" tribunals. All actions heard in an Article I tribunal are subject to de novo review in the supervising Article III court, which retains the exclusive power to make and enforce final judgments.

Pursuant to Congress’ authority under Article IV, §3, of the Constitution to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;" Congress may create territorial courts and vest them with subject-matter jurisdiction over causes arising under both federal law and local law. But "the Supreme Court long ago determined that in the 'unincorporated' territories, such as American Samoa, the guarantees of the Constitution apply only insofar as its 'fundamental limitations in favor of personal rights' express 'principles which are the basis of all free government which cannot be with impunity transcended.'"[6]

The Supreme Court noted in Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986), that parties to litigation may voluntarily waive their right to an Article III tribunal and thereby submit themselves to a binding judgment from an Article I tribunal.

The U.S. Supreme Court in the course of the opinion from Rassmussen v. United States (197 U.S. 596, 524) declared (p. 352, L. ed. p. 186, Sup. Ct. Rep. p. 1119):
'Alaska is one of the territories of the United States. It was so designated in that order [referring to the order of this court assigning to the ninth circuit], and has always been so regarded. And the court established by the act of 1884 is the court of last resort within the limits of that territory. It is, therefore, in every substantial sense, the supreme court of that territory.'
Article IV judges do not have the authority to decide petitioners’ appeals or be appointed to a United States Court of Appeals.[7] In Nguyen v. United States (2003), the Supreme Court ruled that a panel of the Court of Appeals consisting of two Article III judges and one Article IV judge did not have the authority to decide petitioners’ appeals."
The initial error was of course thus made by Justice Marshall in "Canter" [American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511 (1828)] where he used the trick of artificially drawing a distinction between Article III courts and other "purported" courts, whereas of course, he should have stated that there CAN ONLY BE Article III courts and no others. Ever since then, as a result, the "fiction" created by Marshall has been serving to help undermine the separation of powers, and has led to an administrative law system that is encroaching the "real" and legitimate Article III judicial system at all levels.

So-called administrative law courts and their so-called administrative law judges are in their function negative signposts on the road to tyranny, as correctly articulated online in The Fiction and Tyranny of "Administrative Law", by philosopher Kelley L. Ross, since such so-called "courts" permit one branch of government by itself to 1) make, 2) interpret and 3) enforce laws and regulations, which is completely contrary to the separation of powers principle, by which each of those functions is delegated to a different branch of government, i.e. legislative, judicial or executive.

It is time to start cutting administrative agencies and administrative law courts down to their correct Constitutional size.

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