Dissenting:
Under today’s ruling, the majority holds that Congress has the power to authorize *1179the criminal punishment of an illegal act before an administrative tribunal that has only minimal oversight from Article III courts. It is surprising to me that the Ninth Circuit disregards the constitutional separation of powers for the sake of increasing the administrative bureaucracy in this manner. As I read the Constitution, Article III prohibits such Congressional redistribution of the judicial power.1
The majority’s decision is wrong for two reasons. First, it incorrectly concludes that the penalty imposed on Noriega-Perez is not a form of criminal punishment for Article III purposes. Second, it completely fails to understand that Article III and the doctrine of separation of powers prohibits Congress from giving an administrative agency the power to adjudicate the criminal punishment present in this case. I will address both of those problems in turn.
I
A good portion of the majority opinion focuses on analyzing 8 U.S.C. § 1324c under Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), and concluding that petitioner was not punished criminally. In the context of petitioner’s Article III claim that his being fined for immigration document fraud by a non-Artiele III court violated principles of separation of powers, the majority’s analysis is both misguided and incorrect. A proper analysis of petitioner’s case would conclude that his being fined for immigration document fraud is a form of criminal punishment for Article III purposes.
A
A test developed in one area of the law cannot simply be grafted onto another area of the law without risking serious jurisprudential problems. The majority’s analysis of Hudson does just that by taking a test developed for the protections of personal liberties such as Fifth and Sixth Amendment guarantees and grafting it onto an Article III analysis designed to protect the structural integrity of our three branches of government. For that reason, the majority’s reliance on Hudson is completely misplaced in this case.
Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), is the latest in the Supreme Court’s Double Jeopardy Clause jurisprudence. In the case, the Court used a two part test to determine if a second instance of punishment is civil or criminal: first, did the legislature indicate expressly or impliedly that the punishment was criminal; and second, if not, was the statutory scheme so punitive in purpose or effect that it is transformed into a criminal penalty. Id. at 493. That second part of the analysis is guided by the seven factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), as helpful in determining whether an act of Congress is penal or regulatory in character. Under the seven Mendoza-Martinez factors, the Court found that the statute at issue in Hudson did not constitute criminal punishment giving rise to double jeopardy concerns. Hudson, 118 S.Ct. at 495-96.
Although Hudson arose in the double jeopardy context, in ruling on the Article III issue in this case the majority introduces its analysis of Hudson with the following statement: “[Hudson] must guide our discussion of [Noriega-Perez’s] Article III claim because the classification of a sanction imposed by an ALJ as civil in nature is highly probative, although not necessarily determinative, of the constitutionality of the ALJ’s jurisdiction.” Slip op. at 5979. The majority provides no explanation or citation for why Hudson, a double jeopardy case, “must guide” an analysis of Article III issues. Moreover, as shown below, using Hudson and Mendoza-Martinez in the Article III context is unprecedented and misguided.
*1180To see why Hudson and Mendoza-Martinez are not applicable to the Article III context, a look at Mendoza-Martinez is necessary. In Mendoza-Martinez, the Supreme Court decided that the federal statutes imposing loss of citizenship as punishment for leaving or remaining outside the country to avoid the draft were criminal statutes requiring the protections of the Fifth and Sixth Amendments. Mendoza-Martinez, 372 U.S. at 165-66, 83 S.Ct. 554. The Court reached that conclusion by considering the legislative history of the statutes. See id. at 169-84, 83 S.Ct. 554. In dicta, the Court listed seven factors used by it in the past to determine if a statute is penal or regulatory:
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned ....
Id. at 168-69, 83 S.Ct. 554 (internal footnotes omitted). The Court, though, did not apply those factors, instead just stating in a conclusory fashion that “we are convinced that application of these criteria to the face of the statutes [in this case] supports the conclusion that they are punitive....” Id. at 169, 83 S.Ct. 554.
Since then, the Court has used the Mendoza-Martinez factors sparingly and in only limited contexts. In the cases that do use the Mendoza-Martinez factors, the Court has looked to whether Fifth and Sixth Amendment protections apply, see, e.g., United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980), whether the Due Process Clause has been violated, see, e.g., Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Scholl v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), whether a law constitutes a bill of attainder, see, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), and whether a law constitutes criminal punishment for the purposes of the Double Jeopardy Clause, see Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). None of those cases involved a look to the constitutional structural guarantees behind our form of government that are relevant to an Article III analysis.
In fact, that the Mendoza-Martinez test is applicable only in certain contexts is a truth that has been recognized by courts time and time again. The Supreme Court stated this fact explicitly in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). In that case, the Court refused to apply Mendozar-Martinez to an Excessive Fines Clause claim. See id. at 610 n. 6, 113 S.Ct. 2801. Likewise, in discussing Mendozctr-Martinez, the Ninth Circuit has noted the Supreme Court’s “warning] against lifting a test for punishment from one constitutional provision and applying it to another.” See Russell v. Gregoire, 124 F.3d 1079, 1086 n. 6 (9th Cir.1997) (citing United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 2146, 135 L.Ed.2d 549 (1996)), cert denied, — U.S. -, 118 S.Ct. 1191, 140 L.Ed.2d 321 (1998). Finally, in an exhaustive analysis of this topic, the New Jersey Supreme Court concluded that the Mendozar-Mar-tinez factors are extremely context-sensitive and not to be applied outside the areas already recognized by the United States Supreme Court. Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 399-404 (N.J.1995).2
*1181That the Mendozar-Martinez /Hudson factors cannot be applied indiscriminately to any constitutional inquiry is apparent not only from the case law that actually says so but also from looking at the factors themselves and the Article III considerations before the Court in this case. Looking to whether a statute imposes punishment in the manner that both Mendo-zar-Martinez and Hudson do is useful in determining whether an individual’s constitutional rights have been violated. Concerns about criminal prosecutions without due process and the protections of the Fifth and Sixth Amendments or in violation of the Double Jeopardy Clause naturally lend themselves to an analysis of whether the statute at issue is penal or regulatory.
On the other hand, Article III has more global concerns than an individual’s constitutional protections. Article III, and the doctrine of separation of powers of which it is a part, safeguards the structure of government through guaranteeing the integrity of the judicial branch. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 582-83, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (“These requirements protect the role of the independent judiciary within the constitutional scheme of tripartite government and assure impartial adjudication in federal courts.”). Mendo-zar-Martinez and Hudson do not address such concerns and cannot be used to do so. The majority’s use of the seven factors to begin its analysis of an Article III issue is misguided.
B
Even if I were to agree that the Mendo-zar-Martinez /Hudson factors were the appropriate analytical framework for determining whether the punishment here was criminal or civil in nature, I believe the majority has misapplied those factors in a way that seriously misses the fact that petitioner here was punished criminally.
The majority has misapplied key components of the Mendozar-Martinez /Hudson analysis. In looking to whether the sanction has historically been regarded as punishment, the majority states that “monetary penalties for violations of immigration regulation ... have historically been treated as civil in nature.” Slip op. at 5980. All of the cases the majority cites for that proposition, however, involve a more specific area of law than the broad category of “violations of immigration regulation”; they all involve monetary penalties for assisting an alien in illegally entering this country. See Hepner v. United States, 213 U.S. 103, 104-05, 29 S.Ct. 474, 53 L.Ed. 720 (1909) (statute prohibiting inducing an alien “to migrate to the United States for purpose of performing labor here”); Millon v. United States, 219 F. 186, 186 (2d Cir.1914) (same); United States v. Atlantic Fruit Co., 206 F. 440, 442 (2d Cir.1913) (statute regulating steamships bringing aliens into country).
Noriega-Perez’s actions did not involve bringing people into this country; he forged official documents. Although his actions fall within the broad category of “immigration,” they are materially different than bringing people into this country because they are illegal regardless of United States immigration requirements.
Moreover, unlike in Hudson where the fine covered people working within the heavily regulated banking industry, the monetary fine here is being imposed on an individual not engaged in a heavily regulated industry. Imposing fines on an individual for a violation of a statute has certainly historically been viewed as punishment for a wrongdoing. See Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) (stating that at the time of the drafting and ratification of the Eighth Amendment, “the word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense. Then, as now, fines were assessed in criminal, rather than in private civil, actions.”); see also Department of Revenue v. Kurth Ranch, 511 U.S. 767, 779, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (“[Fjines, penalties, and forfeitures are readily characterized as sanctions.”); *1182Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (“Bad, fines, and punishment traditionally have been associated with the criminal pro-cess_”). Referring to the statute at issue here, the Fifth Circuit has stated that the fine under § 1324c is a “punishment of the crime.” Velasquez-Tabir v. INS, 127 F.3d 456, 460 (5th Cir.1997). Although the Supreme Court found a monetary penalty not to be historically viewed as punishment in the Hudson context, it is clear that a monetary penalty of the type here — against an individual for a criminal act not related to a heavily regulated industry — is historically regarded as punishment.
Legislative history also indicates that sanctions for document fraud in violation of this provision of the immigration laws were historically regarded as criminal punishment. In 1993, in a statement referencing the original immigration document fraud legislation enacted in 1990, Senator Alan Simpson stated the following:
In 1990, I offered an amendment to the Immigration Act of 1990 to create civil penalties for document fraud. This amendment was necessary because U.S. attorneys were reluctant to bring criminal charges against aliens and others who used fraudulent documents to obtain immigration or employment benefits. By establishing new civil penalties for this type of document fraud, immigration officers could file complaints and bring these charges without involving the U.S. attorneys.
139 Cong. Rec. S15958, S15964 (daily ed. Nov. 17, 1993) (statement of Sen. Simpson). He also stated:
You may be interested to know that a similar provision was included in the 1990 immigration law, which Senator Kennedy and I cosponsored, where we addressed the use of fraudulent documents to obtain immigration benefits. The INS has been very pleased with the process and has successfully brought actions against individuals which otherwise might have been left at the very bottom of the case pile in the Federal criminal court system.
139 Cong. Rec. S2897, S2903 (daily ed. March 16, 1993) (statement of Sen. Simpson). Those two statements indicate that Congress’s intent was to remove these crimes from criminal court and put them under the jurisdiction of the administrative agency so that the sanctions could be applied more swiftly and surely. That intent shows that historically the sanction for immigration document fraud has been seen as criminal punishment, for the crime was historically dealt with in criminal court.
The other major error in the majority’s Mendoza-Martinez/Hudson analysis is that it fails to look at § 1324c “on its face.” See Hudson, 118 S.Ct. at 494. According to the majority, the imposition of a $96,000 fine in this case of more than 300 violations of the statute is not excessive. See slip op. at 5983. That analysis, though, ignores Hudson’s command that, in conducting the Mendoza-Martinez analysis, courts are to “attribute no significance to the sanctions actually imposed.... ” See United States v. Mayes, 158 F.3d 1215, 1223 (11th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1130, 143 L.Ed.2d 123 (1999).
Considering the statute on its face affects the analysis for three of the Mendoza-Martinez factors: whether the statute promotes the traditional aims of punishment, whether there are alternative noncriminal purposes for the statute, and whether the penalty is excessive. If the majority were to analyze the statute on its face, those three factors would point to a conclusion that the statute is criminally punitive.
Section 1324c provides that the penalty shall be “not less than $250 and not more than $2,000 for each document that is the subject of a violation.” 8 U.S.C. § 1324c(d)(3)(A). Nowhere does the statute tie the per-violation fine or the ALJ’s discretion to impose a penalty within the stated range to the amount the government or the employer lost due to the viola*1183tions. That scheme must be looked at in light of the Supreme Court’s stated difference between civil and criminal actions: “the[re is a] line between civil, remedial actions brought primarily to protect the government from financial loss and actions intended to authorize criminal punishment to vindicate public justice.” United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-49, 63 S.Ct. 379, 87 L.Ed. 443 (1943). Using Hess as the basis of analysis, the statute, looked at on its face, falls on the criminal side of the relevant Hudson factors because of the lack of correlation between the penalty and any facts regarding the crime: the statute promotes the traditional aims of punishment by deterring, it does so to the exclusion of any alternative non-criminal purposes,3 and it is excessive. Accordingly, under Mendoza-Martinez and Hudson, the imposition of fines in accordance with § 1324c would have to be considered a form of criminal punishment.
On a more general level, the majority has misused the Mendoza-Martinez and Hudson factors. The majority uses the Mendoza-Martinez /Hudson factors as if they were completely determinative of the issue at hand. After analyzing each of the seven factors under separate headings, the majority balances them and concludes that “the factors here do not demonstrate by the clearest proof that section 1324e’s monetary sanction is so punitive that it is criminal in nature.” Slip op. at 5983. In reaching this conclusion, the majority has ignored the multiple warnings from the Supreme Court that the Mendoza-Martinez factors are “certainly neither exhaustive nor dispositive.” Ward, 448 U.S. at 249, 100 S.Ct. 2636; accord United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 n. 7, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). Rather, they are “useful guideposts” in determining if something is “punishment in the constitutional sense of that word.” Wolfish, 441 U.S. at 538, 99 S.Ct. 1861; Hudson, 118 S.Ct. at 493. Giving the factors full dispositive weight, as the majority does, flies in the face of the Supreme Court’s description of the factors as non-dispositive useful guideposts.
The majority also errs in its analysis of the Mendoza-Martinez /Hudson factors by failing to look to other factors outside of the Mendoza-Martinez /Hudson list that may also have a bearing on this case. Mendoza-Martinez’s list of factors is by no means an “exhaustive” list. See Ward, 448 U.S. at 249, 100 S.Ct. 2636. Other considerations should be taken into account, especially considering the differing nature of the inquiry we must make here — the appropriateness of resolution of Noriega-Perez’s case before a non-Article III judge' — -from the inquiry in Hudson itself. Factors such as the seriousness of the offense, whether it has traditionally been tried before a jury, and whether it would fall into the mala in se category of crimes are important. Under those additional factors, there is further proof that the statute punishing document fraud is criminal rather than civil.
When looked at in the context framed above, i.e., in the proper historical context, on its face, with the Mendoza-Martinez /Hudson factors given their appropriate non-dispositive weight, and with other factors that are relevant added into the mix, the statute under which petitioner was fined can be described only as a form of *1184criminal punishment. The majority’s conclusion to the contrary clouds its analysis of the central issue in this case: whether the ALJ’s imposition of the fine violated Article Ill’s guarantees.
II
Article III requires that federal judges serving with life tenure during good behavior and with protection against diminished compensation exercise “[t]he judicial Power of the United States.” The provisions of Article III “guarantee that the process of adjudication itself remain[ ] impartial.” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (Brennan, J., plurality). Without Article III protections, “the judge might behave with all the violence of an oppressor.” The Federalist No. 47, at 246 (James Madison) (Bantam Classic ed., 1982). Under the majority’s opinion, this Court takes a significant step toward unleashing the “violence of an oppressor” by authorizing the imposition of a criminal fine by a nonindependent administrative body.
Article III and the doctrine of separation of powers protects “the whole constitutional structure by requiring that each branch retain its essential powers and independence.” Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir.1984) (en banc). In its recent decisions focusing on separation of powers in the Article III context, the Supreme Court has “declined to adopt formalistic and unbending rules” to determine when the doctrine is breached by a “non-Article III tribunal impermis-sibly threatening] the institutional integrity of the Judicial Branch.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986). Instead, it has adopted a flexible balancing test:
[I]n reviewing Article III challenges, we have weighed a number of factors, none of which has been deemed determinative, with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary. Among the factors upon which we have focused are [1] the extent to which the essential attributes of judicial power are reserved to Article III courts, and, conversely, [2] the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, [3] the origins and importance of the right to be adjudicated, and [4] the concerns that drove Congress to depart from the requirements of Article III.
Id. (internal citation and quotations omitted); accord Simpson v. Office of Thrift Supervision, 29 F.3d 1418, 1422 (9th Cir.1994). The majority incorrectly applies the Schor test and concludes that the ALJ’s fine here did not violate the Constitution. A proper application, of the Schor test necessitates a conclusion that 8 U.S.C. § 1324c compromises Article III guarantees and is unconstitutional.
Under Schor, the first two factors require a look at how the congressional enactment affects the balance of judicial power between the Article III and non-Article III courts. Under § 1324c(d)(5), Article III courts retain some of their essential attributes because a person fined has recourse in Article III courts via an appeal to a Court of Appeals. See Simpson, 29 F.3d at 1423. However, the Article III court does not have the power of de novo review, something the Schor Court found vitally important in upholding the adjudicatory powers of the Commodity Futures Trading Commission. Schor, 478 U.S. at 853, 106 S.Ct. 3245. Nor does § 1324c require an Article III court order to enforce the fine, something the Schor Court also found important. See id. Also, unlike in Schor, the hearing before the ALJ was not an option that Noriega-Perez could have opted out of in favor of Article III adjudication. See id. at 848-50, 106 S.Ct. 3245. And, finally, Schor emphasized that the scheme at issue there did not offend Article III because it merely involved counterclaim jurisdiction that was *1185necessary to make the “procedure workable,” id. at 856, 106 S.Ct. 3245; that is not at all the case here. All of these factors contribute to Article III courts being deprived of the essential attributes of the judicial power in the context of immigration document fraud fines. Merely reciting the usual standards of judicial review from the APA, see slip op. at 5987-88, does nothing to change this fact.
Under the second prong of Schor, § 1324c gives non-Article III courts the original decision making function with respect to fining an individual for private conduct not related to a regulated industry. Enforcement of § 1324c goes as follows: the INS, a part of the executive branch under 8 U.S.C. § 1551 (placing the INS under the Department of Justice), brings charges of document fraud against an individual for resolution before another part of the executive branch, the EOIR, see 8 U.S.C. § 1101(b)(4) (placing the EOIR under the Attorney General); see also 8 C.F.R. § 3.0. Resolution of such a matter is something traditionally “vested only in Article III courts.” See Schor, 478 U.S. at 851, 106 S.Ct. 3245. As noted in the discussion of the Hudson factors, fining an individual is a form of criminal punishment. See Browning-Ferris, 492 U.S. at 265,109 S.Ct. 2909; Ingraham, 430 U.S. at 664, 97 S.Ct. 1401. Criminal punishment is something exclusively reserved for Article III courts. See Northern Pipeline, 458 U.S. at 70 n. 24, 102 S.Ct. 2858 (Brennan, J., plurality) (Non-Article III adjudication is not permitted for “any criminal matters, although the Government is a proper party.”); see also In re Hipp, Inc., 895 F.2d 1503, 1511 (5th Cir.1990) (noting that, within the public rights exception, non-Article III adjudication “has never encompassed criminal matters”) (citing R. Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L.Rev. 915, 952 & n. 208 (1988)). Although various courts have approved the delegation of parts of the criminal process to non-Article III magistrates, see Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (eonsented-to voir dire); United States v. Raddatz, 447 U.S. 667, 683-84, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (suppression hearings); United States v. Seals, 130 F.3d 451, 459 (D.C.Cir.1997) (grand jury proceedings), cert. denied, — U.S. -, 118 S.Ct. 2323, 141 L.Ed.2d 697 (1998), delegating the entire punishment function to the executive raises concerns about the aggrandizement of power in one branch and has never been sanctioned under Article III. The majority’s efforts to do so are unprecedented. Under a proper analysis, balancing the first two factors of the Schor test shows that although Article III courts retain some of their essential attributes, the non-Article III court exercises a substantial and important portion of Article III jurisdiction and power.
The other two Schor factors look to the particular right at issue and Congress’ intentions in transferring the adjudication of that right to a non-Article III court. Here, in a very general sense, § 1324c does involve immigration matters, and immigration has indeed historically been within the body of “public rights” capable of being adjudicated outside Article III courts. See Crowell v. Benson, 285 U.S. 22, 51, 52 S.Ct. 285, 76 L.Ed. 598 (1932) (“Familiar illustrations of administrative agencies created for the determination of [public rights] are found in connection with the exercise of the congressional power as to ... immigration....”). Yet, declaring this an immigration matter within the category of immigration matters traditionally delegable to a non-Article III tribunal is deceptive and wrong. Immigration is within the penumbra of legislatively-created public rights because the right to enter this country is one created by Congress. In that respect, immigration is the quintessential “legislatively-created public right” because it fits within the plain meaning of the term. Not surprisingly, all of the cases cited by the majority, and all of the cases I could find, focusing on the delegation of immigration matters to administrative courts involve violations stemming out of bringing people into this coun*1186try in violation of the legislatively-created public right to enter.4
This case, however, is wholly different. This case involves the imposition of a fine on someone who is not trying illegally to access or assist in the accessing of a public right. Here, we have the simple act of document fraud — an act that is illegal regardless of any legislatively-created rights. In this case, the offense just happens to involve immigration documents. If this matter is seen as within the realm of immigration and public rights, then so would assaulting an INS official. Under today’s ruling, because the assault would be related to the public right of immigration, a person could be tried for that assault before an ALJ and fined accordingly.
Taking the majority’s ruling outside, the immigration context shows similarly alarming results. The federal government heavily regulates the banking industry. Thus, by the majority’s rationale, Congress could place the punishment of passing forged checks before an ALJ without raising any Article III concerns as long as the punishment is a fine rather than imprisonment. Similarly outrageous scenarios can be imagined in each and every area of the law that Congress regulates because the majority’s holding boils down to this simple one-sentence syllogism: if related to any area of regulation, the crime is really just a public right that can be delegated to an ALJ.
Some line has to be drawn, and the majority has not articulated a principle by which to do so. Looking to history provides an adequate answer in this case as non-Article III adjudication of this offense is a recent development. Until 1990 with the enactment of 8 U.S.C. § 1324c, punishment for immigration document fraud had historically been a criminal matter handled by an Article III court. See 18 U.S.C. § 1546. Congress’s purpose for removing immigration document fraud matters from Article III adjudication was to remove them from the federal criminal courts that were backlogged with drug and violent crime matters. 139 Cong. Rec. S2897, S2903 (daily ed. Mar. 16, 1993) (statement of Sen. Simpson). In doing so, Congress ensured that the INS would exact fines from individuals who would otherwise have their cases “left at the very bottom of the case pile in the Federal criminal court system.” Id. Congress shifted what had previously been seen as the responsibility of an Article III court to a non-Article III court for the purpose _ of quickening the process and avoiding the delays inherent in Article III adjudication. In a regulatory context, that might be acceptable; however, when dealing with individual conduct that is not associated with a well-regulated industry, such a purpose is suspect and a threat to the principle of separation of powers.
The majority claims that efficiency is a valid purpose for the transfer of public rights to administrative tribunals. See slip op. at 1178. Certainly, that is true with respect to purely regulatory matters. However, in the context of the criminal law and the imposition of criminal fines on private individuals, efficiency cannot justify compromising constitutional protections. If Congress merely had to state that for efficiency purposes it was changing a penalty from criminal to civil and placing the matter before an administrative court, it would have a simple way of evading the constitutional protections given to criminal defendants, such as the right to counsel and a jury trial, because of the simple fact *1187that, as noted above, many crimes are related to an area within the regulatory power of Congress. In this context, efficiency is not a legitimate congressional concern for transferring the adjudication of this matter to an administrative body.
The majority’s final consideration under its Article III analysis shows how little it values the principles behind an independent judiciary. Somehow the majority concludes that the compelled adjudication of this matter before an ALJ does not pose the threat of giving adjudicatory authority to judges who are “potential[ly] domi-nat[ed] by other branches of the government.” See slip op. at 5992. ' The majority does not explain how an ALJ who is a part of the executive branch is not dominated by that very branch. Furthermore, there is no escaping the fact that the ALJ who is deciding the case necessarily has a conflict of interest because any fine levied by the ALJ will go to the branch of government controlling the ALJ. The scheme here is exactly the type of “domination” feared by the Schor Court.
The Constitution creates a delicate balance of power between the three branches of government that must be vigilantly safeguarded. When one branch of government removes powers from another branch and places those powers in the control of the third branch, it is for the judiciary to place a stop to the mischief. As applied here, the four Schor factors indicate that “the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary,” Schor, 478 U.S. at 851, 106 S.Ct. 3245, is to weaken Article III courts by intruding on their traditional power to adjudicate immigration document fraud cases. This Court should hold § 1324c unconstitutional under the separation of powers doctrine.
Because I believe that § 1324c is unconstitutional, Noriega-Perez’s fine under that provision should be vacated, and the INS’s complaint against him dismissed. I respectfully dissent from the majority’s conclusion to the contrary,
. I do not dissent from the majority's conclusion that petitioner's fine did not violate the Double Jeopardy clause.
. Doe v. Poritz was decided before the United Stales Supreme Court's decision in Hudson v. United States. One of Doe's conclusions was that the Mendoza-Martinez factors did not apply in double jeopardy cases. Obviously, now that Hudson has been decided, Doe 's conclusion with respect to double jeopardy was wrong. However, Hudson does not detract from the court's analysis that Mendoza-Martinez is context-sensitive.
. The majority contends that there are several non-punitive purposes for § 1324c. Three of the four suggested purposes, see slip op. at 1174, are just alternative formulations of the deterrence rationale. The other stated purpose, to "reimburs[e] the government for enforcement expenditures," id. at 1174, is clearly not a purpose of the statute when looked at on its face. A simple hypothetical demonstrates this fact: If the government spent $100,000 in enforcing § 1324c and the investigation discovered only one document, the most the government could recover would be $2,000. However, if the government spent the same $100,000 but happened upon a stash of 10,000 forged documents, the government could recover a minimum of $2,500,000 and a maximum of $20,000,000. I am at a loss as to how the majority can reconcile such absurd possibilities under the statutory scheme with a purpose of "reimbursing the government for enforcement expenditures.”
. The majority cites Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150 (1893), as evidence that the power to exclude alien laborers is a public right because it is associated with "the power to punish any who assist in their introduction." See slip op. at 1177-78 (citing Lees, 150 U.S. at 478-79, 14 S.Ct. 163). The majority reasons that because of that relationship recognized by the Supreme Court, Congress can give an ALJ jurisdiction over immigration document fraud. However, Lees had nothing to do with the power to place a matter before an ALJ but rather with whether Congress had the power to regulate the issue at all. No one here disputes Congress has the power to regulate immigration document fraud.