Objections have been raised to the necessity for and the practicality of such a court. These objections are, however, tangential to the subject of this Note and are fully discussed elsewhere. An additional question has been raised regarding the constitutionality of the proposed court. Article III, section 1, of the Constitution provides: "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." Several commentators have challenged the proposed court as violative of the provision for "one supreme Court." There is, however, another approach to the constitutionality problem: Article I, section 8, clause 9, only authorizes the Congress to create those courts that are "inferior." It can be argued that the proposed National Court of Appeals would not be an inferior court, since none of its decisions would be subject to Supreme Court review. In addition, it can be argued that the establishment of a National Court of Appeals would delegate the appellate jurisdiction of the Supreme Court in derogation of the clause establishing the Supreme Court and in derogation of the tripartite governmental framework set up in the Constitution.
Michigan Law Review,
The National Court of Appeals: A Constitutional "inferior Court"?,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol72/iss2/3