article I court. We are giving it the power to punish for contempt. We are giving it the power to punish disobedience or resistance to its lawful orders. The amendment goes on to provide that the new Tax Court shall have such assistance in the carrying out of its lawful writs, process, and orders as is available to a court of the United States.

Now, I do not want to mislead the committee. I think there may be a real question as to whether the Tax Court has the same range of powers in regard to carrying out its writs and orders as the District courts have, in spite of this very broad language. But, certainly, it has a good deal more than an administrative agency has.

It has the specific power to jail and fine for contempt for failure to carry out its orders, and those are mighty powers. This plus the fact that Congress recognized that the Tax Court was carrying out judicial functions seems to us to make this a rather important precedent for the bankruptcy court.

The constitutionality of the Tax Court has come up in the context of a lawsuit challenging the power of the Tax Court to adjudicate a a tax liability. That case was decided by the Tax Court which upheld its own constitutionality. One might say that this may be somewhat self-serving. However, the fact is the case did not go any higher. Although the Tax Court has been in its new, enhanced status for 7 years, I know of no case which has been decided or is even on the way up challenging the status of the Tax Court, other than the one which is mentioned in Judge Copenhaver's remarks; that is, Burns, Stix & Friedman Company, the case in which the court upheld its own constitutionality. The staff is familiar with the case, I am sure.

It seems to us, when you take Palmore, when you take the Tax Court precedent and its decision in Burns, Stix & Friedman, there is substantial precedent for the kind of thing which is being proposed here. To those considerations, I would add a few others.

You will recall, Mr. Chairman, that the Commission to Study the Bankruptcy Laws did say something about the constitutional problem of a new bankruptcy court in its report. It did not say a great deal, but it was concerned enough with the issue to note it. There are a couple of paragraphs in the report in which the Commission recognizes that there could be a question as to whether a court such as that which was proposed is constitutional.

The Commission did not attempt to dispose of whether the court was an article I court or an article III court, but simply concluded that, irrespective of whether it was one or the other, it is constitutional. We understand that that conclusion was predicated upon consultations which the Commission's staff had with a number of constitutional experts.

I believe that the staff has available what information the Commission had, and it can obviously make its own evaluations.

I understand, too, that the staff intends to ask the advice and assistance of constitutional experts on the various questions raised here. We welcome that as a salutary and desirable effort.

Mr. EDWARDS. A number of letters went out last week to constitutional lawyers in different parts of the country and various law schools seeking their advice on this subject.

Mr. DRABKIN. We think that is a good idea, Mr. Chairman, and we were glad to see that it was being done.

All of what I have said is not to say that the constitutionality of the proposed bankruptcy court is absolutely clear and certain. Ĭ do not think that when you get into the constitutional question you can say that anything is clear and certain short of Congress setting up a bankruptcy court with lifetime judges whose salaries could not be diminished during their term of office.

But we would suggest, Mr. Chairman, that the proposals which have been made are reasonable proposals. There is ample precedent for them in other situations and we think that they are proposals which would not run afoul of the constitutional mandate.

Mr. EDWARDS. Thank you very much, Mr. Drabkin. I think you added your important views to this constitutional question with which the subcommittee is wrestling.

The second part, I think, is the biggest issue that we are concerned with. I think it is pretty clear that the first part of your testimony, the constitutionality of the fold-in provisions should not cause too much difficulty. Would you agree?

Mr. DRABKIN. I agree.

Mr. EDWARDS. And thank you very much, judge. I do not think I have any questions.

Mr. Drinan.

Mr. DRINAN. Well I want to thank both of you. And I agree with the chairman that, somehow, I am not turned on by either difficulty, even by the second one, and that it seems to me that the law is pretty well settled in that area.

But could I ask this question? All along the line, was the possibility considered of giving lifetime tenure to bankruptcy judges and nondiminution of compensation? I suppose there is an argument for it rather than the 15 years. Was it contemplated in some way by the Commission?

Mr. DRABKIN. Mr. Drinan, I do not know what the Commission did on it. Perhaps the Chairman might know more about that since he was a member of the Commission.

But in framing the Bankruptcy Judges' bill, we did give some thought to life tenure. It was our view that the Congress simply might not be of a mind to create additional lifetime judges and we went the more modest approach using the Tax Court precedent.

Judge COPENHAVER. And the Tax Court precedent being one which was adopted by the Commission itself.

Mr. DRINAN. That was not completely analogous because that was in the executive branch first. They really were not judges, and the Military Court of Appeals is not entirely analogous, either; so that I just raise the question as to that would obviously avoid all of the difficulties if there are difficulties here, but then you would have the problem of grandfathering with the fold-in.

But I have always looked upon bankruptcy judges as the equivalent of Federal judges, and I just raise the simple question of why they should not be given all of the accoutrements, all of the constitutional awards.

Mr. Chairman, would you have any thoughts on that?

Mr. EDWARDS. I believe that there was some question and some discussion during the markup of the Commission's report to the effect that we might have difficulty with the organized bench, that the dis

trict judges and the circuit court judges would not necessarily agree with this proposal, as well as congressional reluctance to establish a bench of this importance and significance. Do you recall that, Murray? Mr. DRABKIN. I do not know, Mr. Chairman. I was not privy to that. Judge COPENHAVER. I would simply suggest that the National Conference of Bankruptcy Judges functioned on the assumption that the Commission had so concluded even though it was not expressed in the Commission report.

Mr. EDWARDS. You will recall, Mr. Drinan, the wrestling match that we had with the article III judges in relation to the control over bankruptcy judges' pay. Perhaps that might be helpful to you.

Mr. DRINAN. But one consequence of this, though, if you will give them a 15-year term, is that you will have people available to be bankruptcy judges only after they have passed the age of 50. Ordinarily, you will not get people who will want to make this a career. They will have their career, and then this as a second career. And I think this has obvious limitations through that situation.

That is what has happened in the other courts that have a 15-year term, and that is what has happened in the State courts where you get, as in New York, a 12-year term, a 14-year term. And one could argue it either way.

But maybe it is too late to raise the question now of giving them prospectively, at least, at a moment in time, maybe after the first phaseout, a life tenure.

Perhaps the Congress will have the opportunity after the first phase, the first 7 years, or 5 years, to consider that.

But I thank you for your testimony. It was very valuable.

Mr. EDWARDS. Mr. Levin.

Mr. LEVIN. Thank you, Mr. Chairman.

Gentlemen, does the National Conference of Bankruptcy Judges have any objections to an article III court; would they favor it?

Judge COPENHAVER. I must tell you that we have never considered it as such. We had assumed from the beginning that an article III court, with lifetime tenure, was not a realistic possibility.

It may have been that we were somewhat foreclosed in our thinking by the work of the Commission itself. It is a matter that we could address ourselves to, indeed, and report back to you on. But we frankly have not considered it seriously to this point.

Mr. LEVIN. Mr. Drabkin, on the second problem that you raised in your statement about article I and article III courts, the Constitution pretty clearly divides the three powers of the Government-executive, legislative, and judicial-and separates them rather completely.

If the bill that this subcommittee reports out, or the Congress passed, were to create what you term an article I court, which of those three powers would the court be exercising?

Mr. DRABKIN. Well, I am not sure that this issue is susceptible to that kind of categorization. I think if we could tell what powers the Tax Court has exercised and what powers the Court of Military Appeals exercises, and I am afraid I cannot tell you because this is something that crosses over lines.

Mr. LEVIN. Would you say, then, that Congress can create a body which can exercise more than one power, and, if so, is that a violation of the separation of powers?

Mr. DRABKIN. Well, I think the terminology of article I court and article III court, although it has been convenient and used ever since Marshall first used it back in the early 19th century, is somewhat troublesome.

It seems to me what we would have would be a court that would be deciding judicial questions. And the issue that we are dealing with here is whether this need by a court which has lifetime judges or whether it can be a court whose judges have less than lifetime terms. I do not think that attempting to rigidly compartmentalize questions of what power is being exercised is conducive to a solution to that problem.

Mr. LEVIN. Let me give you an example. The Food and Drug Administration is a section within the Department of Health, Education, and Welfare.

The Congress has required the Administration to conduct certain proceedings in a judicial manner and to decide certain cases that are presented to the Administrator of violations of the regulations.

What power would you say the Food and Drug Administration exercises? Is it judicial, and, if so, is the provision allowing the Secretary of Health, Education, and Welfare to revise those judgments unconstitutional?

Mr. DRABKIN. Well, the problem you raise goes back to the experience at the Tax Court; the Tax Court decided judicial issues as an administrative agency.

Congress said it was exercising judicial powers and, therefore, ought to be a court, and it concluded that it could solve the problem by making it a court with judges of less than lifetime tenure.

As you look at a large and complex government, with a variety of functions being carried out, I just do not think that nomenclature is really that helpful.

The fact is that administrative agencies decide issues. They decide issues with hearings. That is more like a court than a decision which is made without hearings. But, beyond that, I am not quite so sure how helpful that is.

Mr. LEVIN. Have you in your research run across any nonarticle III court that Congress has constituted that has had jurisdiction within the States over litigation not involving the Government? Mr. DRABKIN. In the States themselves?

Mr. LEVIN. Yes.

Mr. DRABKIN. The District of Columbia presents a special problem in that, as they say, Congress has plenary authority to legislate for the District of Columbia.

The territorial courts obviously are outside your definition of State. And the various customs and claims courts do not involve suits between parties generally, I believe.

So I think, by and large, if you limit it to those considerations, there is no particular precedent in those terms.

However, it seems to me that that is not the standard or the criterion which the Constitution states.

Mr. KLEE. If the gentleman will yield on that point, two landmark cases decided by the Supreme Court that have discussed the scope of an article I court, namely, Crowell v. Benson and Glidden v. Zdanok, make reference to the point that an article I court involves claims.

against the Government of the United States and that the appropriate scope of an article I court is couched in terms of certain governmental functions.

Opinions of the Court have not foreclosed an article I court in nongovernmental areas, but the cases to this point have been couched in terms of a governmental presence.

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Mr. DRABKIN. Well, I think that is not entirely the case, with all due respect, Mr. Klee, because Palmore does not involve governmentit is a criminal conviction, to be sure, but it does not involve the government, as a tax claim does.

Furthermore, in the District of Columbia, courts decide

Mr. KLEE. Mr. Drabkin, excuse me. I should have reserved the territorial courts and the courts of the District of Columbia as being distinguishable exercises of congressional governmental functions, as adopted by a surrogate State legislature.

But, in the context of article I courts within the States, I think it is fair to say that this limitation holds true.

Mr. DRABKIN. Of course, the problem is that is not what Palmore tells us.

Now, you might argue that Palmore is written too broadly. But Palmore says that the question is whether decisions, under laws of the United States, must be by article III courts, that is, by courts with lifetime judges or not. That is the issue, and the Supreme Court there says that such decisions need not be by article III judges, by judges with lifetime tenure.

Mr. LEVIN. Mr. Drabkin, would you argue that that rationale could be extended to trials in the United States by Federal courts for Federal crimes?

Mr. DRABKIN. Well, for one thing, Palmore points out that, for a long time, State judges who did not have lifetime tenure sat in cases deciding matters under Federal law; that is, before we had as complete a system of Federal courts as we do now.

In the 19th century, especially, Federal cases were decided by State judges who would impose sentences and decide matters as to which, today, we might be quite troubled because they were not lifetime judges. And yet, that was done and was never struck down as unconstitutional.

Mr. LEVIN. Could the Palmore rationale be extended to the States, so that Congress could create limited tenure judges to hear Federal criminal matters in the States?

Mr. DRABKIN. I do not know.

Mr. LEVIN. Section 8 of article I of the Constitution referred to specific congressional powers.

Clause 6 of that says Congress shall have the power to provide for the punishment of counterfeiting the securities and current coin of the United States. That is a specific grant of congressional power. Would you, therefore, argue that Congress may establish limited tenure judges in the States to hear those cases?

Mr. DRABKIN. Well, again, this goes to the question of how far you want to carry these things; and, as with your arguments earlier about whether the Secretary of Defense could appoint Federal judges, one could always carry these things to the absurd and characterize the whole situation by that extension.