concurring in part and concurring in the judgment.
I join all but Part IV of the Court’s opinion. I make that exception because I do not agree with the premise of its discussion: that “the Federal Government need not be a party for a case to revolve around ‘public rights.’” Ante, at 54, quoting Thomas v. Union Carbide Agricultural Products Co., 473 U. S. 568, 586 (1985). In my view a matter of “public rights,” whose adjudication Congress may assign to tribunals lacking the essential characteristics of Article III courts, “must at a minimum arise ‘between the government and others.’” Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50, 69 (1982) (plurality opinion), quoting Ex parte Bakelite Corp., 279 U. S. 438, 451 (1929). Until quite recently this has also been the consistent view of the Court. See 458 U. S., at 69, n. 23 (“[T]he presence of the United States as a proper party ... is a necessary but not sufficient means of distinguishing ‘private rights’ from ‘public rights’”); Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 450 (1977) (public rights cases are “cases in which the Government sues in its sovereign capacity to enforce public rights created by statutes”); id., at 457 (noting “distinction between cases of private right and those which arise between the Government and persons subject to its authority”); id., at 458 (situations involving “public rights” are those “where the Government is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights”); Crowell v. Benson, 285 U. S. 22, 50-51 (1932) (public rights are “those which arise between the Government and persons subject to its authority in connection -with the performance of the constitutional functions of the executive or legislative depart*66ments”); Ex parte Bakelite Corp., supra, at 451 (public rights are those “arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it”); Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 283 (1856) (plaintiff’s argument that a controversy susceptible of judicial determination must be a “judicial controversy” heard in an Article III court “leaves out of view the fact that the United States is a party”).
The notion that the power to adjudicate a legal controversy between two private parties may be assigned to a non-Article III, yet federal, tribunal is entirely inconsistent with the origins of the public rights doctrine. The language of Article III itself, of course, admits of no exceptions; it directs unambiguously that 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.” In Murray’s Lessee, supra, however, we recognized a category of “public rights” whose adjudication, though a judicial act, Congress may assign to tribunals lacking the essential characteristics of Article III courts. That case involved the Act of May 15, 1820, 3 Stat. 592, which established a summary procedure for obtaining from collectors of federal revenue funds that they owed to the Treasury. Under that procedure, after a federal auditor made the determination that the funds were due, a “distress warrant” would be issued by the Solicitor of the Treasury, authorizing a United States marshal to seize and sell the personal property of the collector, and to convey his real property, in satisfaction of the debt. The United States’ lien upon the real property would be effective upon the marshal’s filing of the distress warrant in the district court of the district where the property was located. The debtor could, however, bring a challenge to the distress warrant in any United States district court, in which judicial challenge “every fact upon which the legality of the extra-judicial remedy depends may be drawn in[to] ques*67tion,” 18 How., at 284. Murray’s Lessee involved a dispute over title to lands that had been owned by a former collector of customs whom the Treasury auditor had adjudged to be deficient in his remittances. The defendant had purchased the land in the marshal’s sale pursuant to a duly issued distress warrant (which had apparently not been contested by the collector in any district court proceeding). The plaintiff, who had acquired the same land pursuant to the execution of a judgment against the collector, which execution occurred before the marshal’s sale, but after the marshal’s filing of the distress warrant to establish the lien, brought an action for ejectment to try title. He argued, inter alia, that the process by which the defendant had obtained title violated Article III because adjudication of the collector’s indebtedness to the United States was inherently a judicial act, and could not lawfully have been performed by a Treasury auditor, but only by an Article III court. We rejected this contention by observing that although “the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act,” id., at 280, the English and American traditions established that it did not, without consent of Congress, give rise to a judicial “controversy” within the meaning of Article III.
It was in the course of answering the plaintiff’s rejoinder to this holding that we uttered the words giving birth to the public rights doctrine. The plaintiff argued that if we were correct that the matter was “not in its nature a judicial controversy, congress could not make it such, nor give jurisdiction over it to the district courts” in the bills permitted to be filed by collectors challenging distress warrants — so that “the fact that congress has enabled the district court to pass upon it, is conclusive evidence that it is a judicial controversy.” Id., at 282. That argument, we said, “leaves out of view the fact that the United States is a party.” Id., at 283. Unlike a private party who acts extrajudicially to recapture his property, the marshal who executes a distress warrant “can*68not be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, cannot be sued without its own consent,” even though the issue in question is an appropriate matter for a judicial controversy. Ibid. Congress could, however, waive this immunity, so as to permit challenges to the factual bases of officers’ actions in Article III courts; and this waiver did not have to place the proceeding in the courts unconditionally or ab initio, for the “United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just.” Ibid. Thus, we summed up, in the oft-quoted passage establishing the doctrine at issue here:
[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” Id., at 284 (emphasis added).
It is clear that what we meant by public rights were not rights important to the public, or rights created by the public, but rights of the public — that is, rights pertaining to claims brought by or against the United States. For central to our reasoning was the device of waiver of sovereign immunity, as a means of converting a subject which, though its resolution involved a “judicial act,” could not be brought before the courts, into the stuff of an Article III “judicial controversy.” Waiver of sovereign immunity can only be implicated, of course, in suits where the Government is a party. We understood this from the time the doctrine of public rights was born, in 1856, until two Terms ago, saying as recently as 1982 that the suits to which it applies “must at a minimum arise ‘between the government and others,’” Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S., at 69, quoting Ex parte Bakelite Corp., 279 *69U. S., at 451. See also, in addition to the eases cited supra, at 65-66, Williams v. United States, 289 U. S. 553, 581 (1933) (noting sovereign immunity origins of legislative courts); Ex parte Bakelite, supra, at 453-454 (same). Cf. McElrath v. United States, 102 U. S. 426, 440 (1880).
In Thomas v. Union Carbide Agricultural Products Co., 473 U. S. 568 (1985), however, we decided to interpret the phrase “public rights” as though it had not been developed in the context just discussed and did not bear the meaning just described. We pronounced, as far as I can tell by sheer force of our office, that it applies to a right “so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.” Id., at 593-594 (emphasis added). The doctrine reflects, we announced, “simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that ‘could be conclusively determined by the Executive and Legislative Branches,’ the danger of encroaching on the judicial powers is reduced,” id., at 589, quoting Northern Pipeline, supra, at 68 — without pointing out, as had Murray’s Lessee, that the only adjudications, of private rights that “could be conclusively determined by the Executive and Legislative Branches” were a select category of private rights vis-á-vis the Government itself. We thus held in Thomas, for the first time, that a purely private federally created action did not require Article III courts.
There was in my view no constitutional basis for that decision. It did not purport to be faithful to the origins of the public rights doctrine in Murray’s Lessee; nor did it replace the careful analysis of that case with some other reasoning that identifies a discrete category of “judicial acts” which, at the time the Constitution was adopted, were not thought to implicate a “judicial controversy.” The Unes sought to be established by the Constitution did not matter. “Pragmatic understanding” was all that counted — in a case-by-case evaluation of whether the danger of “encroaching” on the “judi*70cial powers” (a phrase now drained of constant content) is too much. The Term after Thomas, in Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986), we reconfirmed our error, embracing the analysis of Thomas and describing at greater length the new Article III standard it established, which seems to me no standard at all:
“[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 the extent to which the ‘essential attributes of judicial power’ are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.” 478 U. S., at 851, citing Thomas, supra, at 587, 589-593.
I do not think one can preserve a system of separation of powers on the basis of such intuitive judgments regarding “practical effects,” no more with regard.to the assigned functions of the courts, see Mistretta v. United States, 488 U. S. 361, 426-427 (1989) (Scalia, J., dissenting), than with regard to the assigned functions of the Executive, see Morrison v. Olson, 487 U. S. 654, 708-712 (1988) (Scalia, J., dissenting). This central feature of the Constitution must be anchored in rules, not set adrift in some multifactored “balancing test”— and especially not in a test that contains as its last and most revealing factor “the concerns that drove Congress to depart from the requirements of Article III.” Schor, supra, at 851.
I would return to the longstanding principle that the public rights doctrine requires, at a minimum, that the United States be a party to the adjudication. On that basis, I concur in the Court’s conclusion in Part IV of its opinion that *71the Article III concomitant of a jury trial could not be eliminated here. Since I join the remainder of the Court’s opinion, I concur in its judgment as well.