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37 The ENRD memorandum refers to a third category — court-ordered binding arbitration. We believe that a court may order binding arbitration only if it is specifically authorized to do so. When Congress expressly commits jurisdiction to resolve cases of a particular type to the Article III judiciary, the Article III judiciary may not rewrite the jurisdictional statute to provide for final resolution by some other agent — any more than the executive may refuse to carry out a valid statutory duty. Cf. Northern Pipeline Constr. Co. v. Race Pipe line Co., 458 U.S. 50 (1982); Youngstown Piece Tubing Co. v. , 343 U.S. 579 (1952); Within the lso are Us, 816 F.2d 1083 (6th Cir. 1987). If a statute grants a court authority to order binding arbitration, the scheme is properly analyzed as an example of statutorily mandated binding arbitration. Pick, age.grams., 28 U.S.C. § 651 et seq. (authorizing federal district courts to refer matters to arbitration); 28 U.S.C. §§ 631, 636 (authorizing appointment of and establishing powers of United States Magistrate Judges).
1. Breakup out of Efforts. CFTC v. Schor, 478 U.S. 833 (1986): that vesting clause “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 and thereby preventing ‘the encroachment or aggrandizement of one branch at the expense of the other.'” Id. at 850 (quoting, respectively, National Insurance Co. v. Tidewater Co., 337 U.S. 582, 644 (1949) (Vinson, C.J., dissenting) and Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam)). In reviewing assertions that a particular delegation to a non-Article III tribunal violates Article III, the Court applies a general separation of powers principle; that is, the Court looks to whether the practical effect of a delegation outside Article III is to undermine “the constitutionally assigned role of the federal judiciary.” Schor, 478 U.S. at 851; see Thomas v. Partnership Carbide Agric. Prods. Co., 473 U.S. 568, 590 (1985) (looking to whether a delegation outside Article III “threatens the independent role of the Judiciary in our constitutional scheme”).
It is not possible to draw a broad conclusion regarding the validity of statutory schemes that mandate binding arbitration, except to observe that some conceivable schemes would not violate Article III while other schemes conceivably could. See Thomas, 473 U.S. at 594. The Court has listed three factors that it will examine to determine whether a particular adjudication by a non-Article III tribunal, such as an arbitration panel, impermissibly undermines the constitutional role of the judiciary. The Court looks first to the extent to which essential attributes of judicial power are reserved to Article III courts and the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested in Article III courts; second to the origin and importance of the right to be adjudicated; and third to the concerns that drove Congress to place adjudication outside Article III. Schor, 478 U.S. at 851.
