dissenting in part.
I concur in Judge Arnold’s dissenting opinion, but wish to add some additional remarks.
The majority initially notes that the constitutional attacks on the Magistrates Act are derived from two basic Article III concerns: due process and separation of powers. The majority then cites, and agrees with, Goldstein v. Kelleher, 728 F.2d 32, 35 (1st Cir.1984), for the proposition that “insofar as Article III protects individual litigants, those protections can be waived.” I agree that consent may be relevant to due process; indeed, if a party stipulates that an abbreviated procedure may govern an adjudicatory finding of any tribunal, it should be obvious that the party cannot complain. If the consensual-referral argument was used only for this proposition, I would have no problem. The cases cited and relied on by the majority, however, go much further.
In Wharton-Thomas v. United States, 721 F.2d 922 (3d Cir.1983), for example, a similar case cited and relied on by the majority, the court stated: “The question in the present case is not whether Congress may constitutionally delegate case dispositive authority to a non-Article III officer, but whether the parties may, by consent, ■have a case tried to judgment before a magistrate.” Id. at 928 n. 9 (emphasis original).1 I totally disagree with this rea*1318soning. I think the fundamental issue is What the Third Circuit rejects: whether Congress can constitutionally delegate case dispositive authority — which I believe is, in essence, the judicial power of the United States — to a non-Article III officer. Article III adequately addresses this when it delimits where the judicial power may be vested and how the judges therein shall hold office. It should be clear this limitation cannot be exceeded by parties acquiescing in the expansion of judicial authority. Private parties cannot authorize the judicial power of a constitutional tribunal.2 The exercise of governmental authority may only be sanctioned by the terms of the charter authorizing it.3 Therefore, I believe that the concern should not be whether there exists consensual reference to a non-Article III judge, but whether Congress has the constitutional authority to pass such legislation.
My conclusion that Congress may not delegate such authority to a non-judicial officer is supported in large part by United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). The Supreme Court upheld a statute that permitted the district court to give the magistrate’s proposed findings of fact and recommendations such weight as their merit commands and the sound discretion of the judge warrants. The Court held that this delegation of authority to the magistrate did not violate Article III “so long as the ultimate decision is made by the district court.” Id. at 683, 100 S.Ct. at 2416 (emphasis added). The saving grace of this delegation — a de novo review by a district court exercising ultimate authority — is glaringly absent here. There exists no Article III de novo review when the parties consent to the jurisdiction of a magistrate under section 636(c), and the direct appeal provision to the circuit court is not a saving feature. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n. 39, 102 S.Ct. 2858, 2879 n. 39, 73 L.Ed.2d 598 (1982) (“Our precedents make it clear that the constitutional requirements for the exercise of the judicial power must be met at all stages of adjudication, and not only on appeal____”).
To urge, as Pacemaker II and this majority do, that magistrate appointment, case reference and recall, and appellate review is sufficient Article III supervision ignores, I feel, the historical underpinnings of Article III. The magistrate’s role is not limited to that of an adjunct. These non-Article III judges have been given power to adjudicate “laws of national applicability and affairs of national concern.” Palmore v. United States, 411 U.S. 389, 408, 93 S.Ct. 1670, 1681, 36 L.Ed.2d 342 (1973). This, I feel, is an unconstitutional delegation, by Congress, of the judicial power of the United States to judges that are not protected by the dictates of Article III.
If bankruptcy judges and magistrates are to be given Article III authority, they must be made Article III judges. As *1319Judge Arnold points out, without the structure of judicial independence mandated by Article III, bankruptcy judges and magistrates fall short of the authority to exercise the judicial power of the United States. This constitutional fact alone sufficiently denigrates the congressional attempt to authorize magistrates to render Article III powers. Whether they should be Article III judges is a question for Congress — until, they are made so, we should not by judicial fiat perform that act.4
. The Ninth Circuit also used broad language in reliance on litigant consent and gave deference to the Third Circuit’s conclusion "that consent under § 636(c) cures any constitutional defects." Pacemaker Diagnostic Clinic of America v. Instromedix, 725 F.2d 537, 542 (9th Cir.1984) *1318(en banc). See also Goldstein v. Kelleher, 728 F.2d 32, 34-35 (1st Cir.1984) ("We agree with the en banc decision of the Ninth Circuit and with an earlier decision of the Third Circuit that section 636(c)(3) is not unconstitutional____ As we find little to add to Judge Weis's thorough discussion in Wharton-Thomas, we rely in particular on the reasoning in that case____”).
. .It is well settled that parties may not by stipulation "invoke the judicial power of the United States in litigation which does not present an actual ‘case or controversy.’ ” Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975). The reasoning behind this fundamental premise is that litigants cannot by private agreement transcend the limits of a constitutional government beyond the framework of the Constitution. It is for this fundamental reason that jurisdiction of the federal courts cannot extend beyond that given by the Constitution. It is also for this reason that parties may not consent to subject matter jurisdiction in the federal courts in the same manner that they waive personal jurisdiction or other non-jurisdictional rights. Although we are not concerned with subject matter jurisdiction, we are faced with an analogous argument, that the parties may consent to the exercise of judicial power not otherwise authorized by the Constitution.
. As Chief Justice Marshall stated: "We admit, ' as all must admit, that the powers of the government are limited, and that its limits are not to be transcended.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421, 4 L.Ed. 579 (1819).
. This statement is not an attempt to endorse vesting Article III status on magistrates or bankruptcy judges. Policy decisions such as this require congressional balancing of need, budgetary justification, etc. My point is simply that we should not judicially approve measures that do not comport with Article III.