With President Donald Trump’s pledge to take back the Panama Canal, it’s worth looking back at how the United States administered justice in the Canal Zone from the early 20th century to the early 1980s.

In addition to the Canal itself, the United States controlled a ten-mile-wide Canal Zone composed of about five miles of land on each side of the Canal. At first, the United States used an amalgamation of commissions and courts to mete out justice and resolve disputes within that territory. But none of these proved satisfactory. Complaints compounded throughout this period, and concerns arose about the fact that the decisions of these courts were not ultimately reviewable by the U.S. Supreme Court. In fact, the Supreme Court explicitly declined, for lack of jurisdiction, to review a death sentence that the local Canal Zone courts had imposed.

So, in 1912, Congress passed legislation to establish the United States District Court for the Canal Zone. The court came into existence two years later and functioned much like other federal district courts—with some additional duties. Decisions from this court could be appealed to the United States Court of Appeals for the Fifth Circuit, and they could ultimately be reviewed by the U.S. Supreme Court.

Interestingly, the federal district court judges of the Canal Zone court didn’t hold their offices during “good behavior.” In other words, they didn’t have life tenure. Instead, the president appointed them, and after Senate confirmation, they served renewable eight-year terms. This arrangement still exists (with ten-year renewable terms) for some federal district court judges in the territories (Guam, the Virgin Islands, and the Northern Mariana Islands); but other territories (Puerto Rico) have life-tenured judges in accordance with Article III of the Constitution.

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Article III vests “The judicial Power of the United States” in “one Supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish.” It makes clear that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior,” which is more commonly referred to as life-tenure. It also provides that such judges shall receive fixed compensation that cannot be diminished while they continue to serve in office.

But at the same time, the Constitution gives Congress broad power over enclaves (The latter part of Article I, Section 8, Clause 17) and territories (Article IV, Section 3, Clause 2). The latter clause provides that “Congress shall have Power to . . . make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.” And on top of that, the Necessary and Proper Clause give Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . .”

Against this backdrop, significant questions remain about whether the former Canal Zone’s non-Article III court arrangement comports with the Constitution. The Supreme Court has generally held that territorial judges need not have life tenure, but some originalist—and non-originalist—scholars have questioned the court’s decisions in these areas. Fundamentally, questions remain about when, how, and, most importantly, why Congress can create non-Article III tribunals to hear cases and controversies.

As then-Chief Justice Williams Rehnquist put it, the “cases dealing with the authority of Congress to create courts other than by use of its power under Article III do not admit of easy synthesis.” He described the competing views as being between

whether [the Supreme Court’s precedents] in fact support a general proposition [Congress must create lower federal courts in accordance with Article III’s requirements] and three tidy exceptions [territorial courts, District of Columbia courts, and legislative courts and administrative agencies designed to adjudicate public rights disputes] . . . or whether instead [these precedents] are but landmarks on a judicial ‘darkling plain’ where ignorant armies have clashed by night.

Justices Clarence Thomas and Samuel Alito have clashed as combatants on this darkling plain, disagreeing over the nature and extent of Article III’s Vesting Clause. While both seem to say that Congress can create non-Article III territorial courts (a conclusion still subject to debate), they disagree on why that’s the case.

As Prof. Will Baude synthesized, Thomas intimated that “Article III’s Vesting Clause ‘must be read against commonly accepted background understandings and interpretive principles in place when the Constitution was written . . . .’” In other words, Baude says that Thomas has embraced a position previously put forward by Prof. Caleb Nelson “that Article III does not in fact vest the entire ‘judicial power of the United States” in the Supreme Court and the lower Article III federal courts. Instead, for example, Thomas draws a distinction between what he characterizes as the civilian judicial power, which Article III vests in the supreme and inferior courts alone, and the military judicial power, which Thomas argues the Constitution vests elsewhere and can be exercised by non-Article III entities.

Baude, though, disagrees with Thomas and says that Alito “got it exactly right.” Alito argued that “Article III of the Constitution vests ‘[t]he Judicial Power of the United States’—every single drop of it—in ‘one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish’ in compliance with that Article.” So how then does Alito explain—and condone—the existence of non-Article III territorial courts?

Alito argues that Congress can create non-Article III territorial and District of Columbia courts because those courts—even though created by Congress and backed up by the ultimate power of the federal government—do not exercise the “Judicial Power of the United States.” Instead, they exercise some other judicial power such as that of their territory or of the District of Columbia. (Even if this may be true of the territories, there’s reason to be especially skeptical of this rationale when it comes to the District of Columbia’s non-Article III courts given their relatively recent vintage and the unique status and relationship of the District to the federal government).

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Prof. Gary Lawson, writing before Alito and Baude, pooh-poohed this rationale. He wrote that the “Constitution could not be clearer about the judicial power” and that Article III vests “all of it” in “courts staffed by judges who enjoy tenure during ‘good Behaviour’ and assurances that their compensation” won’t be diminished while in office. But he said that the “territorial system is clearly far removed from the Article III model” and called the “story of how the federal courts avoided [the] seemingly obvious conclusion [that Article III must apply to territorial courts] among the most mysterious, and intriguing, in American constitutional history.”

The Supreme Court has also said that Article IV territorial judges (it’s unclear what, if any, purchase is made by categorizing them as Article IV versus Article I judges) cannot sit by designation (that is, be specially appointed) to sit and hear cases with Article III judges where such judges are required by law.

Justice Antonin Scalia, for his part, thought that the structure and practices of territorial courts provided little insight into what power Congress may give to administrative tribunals and other Article I courts. In fact, he said that it “should be obvious that the powers exercised by territorial courts tell us nothing about the nature of an entity, like the [Article I] Tax Court, which administers the general laws of the Nation.” And he went so far to say, in dicta in one concurrence, that in his view “Congress may endow territorial governments with a plural executive; it may allow the executive to legislate; it may dispense with the legislature or judiciary altogether” because Congress need not be concerned about separation of powers principles within the territories.

All of this to say that reconstituting the Canal Zone Court, should it come to that, would require the president, the Congress, and the (Article III) courts to reconsider some prior practices and precedents to determine whether they comport with the Constitution. And if not, it may still be wise to reevaluate whether existing territorial courts and District of Columbia courts—particularly the latter—live up to the structural designs and demands of our Constitution.