Note: Who Are They to Judge?: The Constitutionality of Delegations by Courts to Probation Officers

By Mark Thomson. Full text here.

In order to promote judicial economy, Article III courts routinely delegate decisionmaking authority to probation officers. Probationers increasingly challenge those delegations as violating the Constitution’s command that only Article III judges shall exercise “the Judicial power.”

Courts apply either of two standards when evaluating the constitutionality of judicial delegations to probation officers. The first of these two standards—called the “core judicial functions test”—allows courts to delegate to probation officers only those powers that are not essential to the judicial role. The second standard—called the “ultimate authority test”—allows courts to delegate decision making authority to probation officers so long as some Article III court retains the power to supervise, amend, or overrule the probation officers’ decisions. As the Note explains, each of these standards is flawed, logically and in practice.

Rather than applying either of the prevailing judicial standards, the Note advocates application of a third test: courts should uphold judicial delegations to probation officers so long as the delegating court identifies some intelligible principle to guide the probation officer in exercising the delegated power. By using this intelligible principle standard to evaluate the constitutionality of judicial delegations to probation officers, courts would bring coherence and predictability to an area of the law which today is sorely lacking both.