Whether an amendment to the HCA that extends the judicial authority granted to the BORS to permit exclusive adjudication and demand compliance from parties in claims and counterclaims from commercial transactions involving tools, techniques, and research protocols on Congress-approved human cloning will be in violation of Article III of the U.S. Constitution.
Whether the HCA amendment proposal can be modified in any way to satisfy the requirements set forth in the Supreme Court's evaluation of its arbitrary and capriciousness and in what way these changes increase the likelihood that the U.S Supreme Court of Appeals for instance for the District of Columbia Circuit will find the amendment constitutional under Article III of the U.S Constitution.
SHORT ANSWER
The contextual basis for the existence of the BORS as a function of the HCA and transactions allowed therein can well be understood to be volatile and esoteric so as to require that an agency independent of the complex legislative and judicial structures that constituted the existence of the HCA handle disputes issuing from private commerce transactions involved to avoid recurrent bifurcate construals of the Constitution in the larger scope. As such it is befitting and constitutional that Congress delegate adjudicative authority to a non-Article II body (BORS) as it is practicable on substance rather than formal doctrine about the underpinnings of Article III to an inferior federal tribunal as found in Thomas v. Union Carbide 473 U.S. 568 (1985).
The current proposed amendment to the HCA, however, amounts to and explicitly gives the BORS constitutionally questionable jurisdiction over matters better left to state law in a tripartite constitutional system It authorizes the BORS to exert both legislative and judicial pressure on litigants in any judicial matters; going directly against the protections of Article III from influence on an independent judiciary.
STATEMENT OF FACTS
The Board of Regenerative Science (BORS) is in effect empowered by the Human Cloning Act 2017. As an independent federal agency, the BORS is the authorized regulatory, legislative tribunal for private commercial transactions involved in science, commerce, and development of human cloning technologies. The BORS currently provides normative guidance to the practice of human cloning under U.S Constitution. The body can impose fines and penalties for noncompliance with its guidelines. The proposed amendment will empower the BORS to exert judicial authority on claims and counterclaims arising from disputes in allowed transactions. The amendment does not require that counterclaims be ancillary to or depend on original claims. BORS will have exclusive jurisdiction and power to demand compliance. These claims and counterclaims normally reside within state law.
DISCUSSION
The ensuing contest is one of whether there is indeed a valid ground, solid logic and/or historical reference for Congress to establish an independent federal agency that has such authority that Article III does not apply or the court will be beyond the reach of Article III jurisdiction in the matter arising from private commercial transaction allowed in the HCA and as stipulated by the BORS. In the 1986 argument for CFTC v. Schor at 478 U.S. 83, it was retained that the protections of Article III not only ensure the independence of the judiciary but also declares an incontestable inclusion of the checks and balances that prevent encroachment of non-Article III tribunals on constitutional courts. Allowing the BORS exclusive judicial power authorizes conducting of Article III business outside a constitutional court and undermines the integrity of the judiciary. The amendment does not demand that counterclaims be ancillary to or dependent upon the original transactions and claims essentially creating a broad grant of jurisdiction on a prospective basis that creates a judicial slippery slope for interpretations of Article III over state law counterclaims to the BORS as informed by the 1982 litigation of Northern Pipeline CO. and Marathon Pipe Line Co. The matters that BORS gets a delegation to preside upon are not rights that Congress creates but state –created rights that are constitutionally recognized and therefore it is not upon Congress to delegate the functional attributes of Article III to a non-Article III adjunct. It is arguable however that the congressional motivation by judicial duties BORS will undertake will not intrude Federal Judiciary because the agency serves to share in the federal court jurisdiction, albeit on a broad principle to establish an expeditious alternative that ensures effectiveness of the cloning scheme established by the BORS under HCA; driving departure from Article III as provided for in Article I.
The amendment to the HCA ensures that the rights created by the act can be well protected and disputes thereof resolved within the scheme created by BORS. The amendment should identify these rights and distinguish or identify them in the context of constitutional courts to separate jurisdiction authority befitting a non-Article III tribunal different from a federal Article III court. These right should in effect diminish the effect of a broad principle of jurisdiction on matters that would normally be adjudicated within state law. The amendment should also be changed to restrict the jurisdiction on counterclaims within the scheme by demanding that the counterclaims be ancillary and or dependent on original claims to prevent a repetition of the historical judicial precipice to adjuncts such as the one proposed (Moore v. New York Cotton Exchange, 1926).
CONCLUSION
It is apparent that the proposed amendment to the HCA will in effect create a judicially contentious issue by creating instances in that can instigate unconstitutional jurisdiction of state law claims and counterclaims by the BORS as a matter of construal albeit on a prospective basis.
Works Cited
CFTC v. Schor, 478 U.S. 833. U.S Supreme Court. 7 July 1986. Print.
Moore v. New York Cotton Exchange, U.S Supreme Court. 12 Apr. 1926. Print.
Northern Pipeline Co. v. Marathon Pipe Line Co. U.S Supreme Court. 28 June 1982. Print.
Thomas v. Union Carbide, 473 U.S. 568. U.S Supreme Court. 1 July 1985. Print.
