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Reforming Regulation: Article III Administrative Judges and More Radical Changes

In my last several posts (see here for links), I have written about the possibility of constraining the executive branch and regulation through statutory reforms.  I have focused on reforms that might be desirable and that might actually be passed by a Republican Congress with a Republican President.

Of course, if one wanted to depart from the constraint of what might actually be enacted in the short term, one could contemplate more radical reforms that might be desirable.

For example, one serious problem with present administrative law is that it allows agencies to adjudicate matters on a case by case basis.  These adjudications decide not only matters of law, but also questions of fact.  And while these adjudications are subject to judicial review, the factual findings of the agency are reversed only if they lack substantial evidence and the legal findings are reversed only if they fail Chevron deference.  Thus, in a retrospective adjudication, agency officials, who are not independent, can decide matters on a case by case basis subject only to limited judicial review.

This arrangement could be reformed by using Article III administrative judges.  At present, adjudications ordinarily are conducted by administrative law judges (ALJs) who do not have the constitutional protection of life tenure.  Instead of employing ALJs, one could create a new position of administrative judge, who would be an Article III judge possessing life tenure.  Significantly, if adjudications were conducted by Article III judges, the Constitution would prohibit their decisions from being reviewed and reversed by the administrative agency.  Under current practice, administrative agencies often review and reverse such ALJ decisions.

As a consequence, administrative adjudications conducted by Article III administrative judges would be independent.  In such a world, the agency could not use its adjudicatory function to pursue policy.  Instead, it would have to employ rules to exercise policy.  This would provide agencies with additional incentives to use rules rather than adjudications.

Moreover, one might combine these policy reforms with the elimination of Chevron and Seminole Rock deference, which respectively confer deference on agency interpretations of statutes and rules.

The combination of eliminating such deference along with establishing Article III Administrative Courts would go a long way towards subjecting administrative agencies to a strong version of the rule of law.  Yet, it would not prevent the administrative state from operating, because agencies could continue to issue rules and agency adjudications would not crowd the ordinary federal courts, but instead would be in special Article III administrative courts.

Reader Discussion

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on March 31, 2015 at 10:41:05 am

Now, you're talking!

Question: Do you see any possibility of the Art III *Admin* Judges becoming captive as has been alleged of the FISA court Judges - or if not *captive* perhaps, a bit too friendly?

Also, one would expect that with Art III Judges some semblance of *due process* would once again be afforded to the "supplicants."

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gabe
on March 31, 2015 at 15:50:44 pm

Yes, ideally not only would you have full article 3 judges adjudicating these disputes (although in an administrative forum), you would I think have to exclude hearsay and other such unreliable evidence that administrative tribunals currently rely on.

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Devin
on March 31, 2015 at 16:46:08 pm

not to mention separating out the Legislative / Executive from the Judicial powers as is somewhat common in these matters.

Anyway, I think Rappaport may have hit it out of the park here - at least, a stand-up triple!!!

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gabe
on April 05, 2015 at 14:53:14 pm

I read the series of articles and while I agree in principle that reform is needed, I don’t see reform happening through the proposals given. The problem is that government works badly for reasons. The reasons need to be addressed. If you try to fix the symptoms without fixing the causes, you just end up with a bigger mess than what you started with.

Since we are brainstorming, let me make a new proposal, a new theory of law of sorts based on the legal process that led to the Declaration of Independence, and the constitutional doors the Framers left to us for reform of government in the event the government became irrational.

The deeper problem of irrational government can be solved with (relative) ease if even a single state used the same process of petitioning for a redress of grievances that was used by the three congresses of 1774, 1775 and 1776.

Let's review a little history, so we are on the same page ...

The grievance process used by the colonies was a formal process for requesting corrections of specific government activities that were contrary to their constitution. Grievances about specific laws were not proper unless there was an underlying issue of constitutionality. The colonies' petitioners, the members of the three congresses, were properly appointed ambassadors to the citizens of each colony.

The Congress of 1774 petitioned for redress for a set of violations of the constitution of Great Britain. The petition was addressed to the governing monarch for reasons of propriety, while Parliament actually handled the petitions.

Parliament did not handle congresses initial petition in a way the colonists found acceptable. The colonists responded back to Parliament's response. Parliament again did not respond back in a way the colonists found acceptable. The colonists made their case that the government of Great Britain had abandoned their constitution and their concern for the colonist's wellbeing and based on that abandonment had in fact abdicated their rule of the colonists. Their claim was formalized in the Declaration of Independence.

To generalize, the precedent for propriety and dueness was established as this:

Properly appointed representatives acting as ambassadors to a group of citizens filed a petition for redress of grievances, addressed to the national sovereign.

The grievances were about constitutional issues and nothing else. To ensure the validity of the petition, the grievances were common to all of the petitioners.

The sovereign was given an opportunity to explain or correct the issues. The sovereign gave to the petitioners an inadequate explanation and made no repairs.

A response was returned by the petitioners to the sovereign stating that the explanation was unreasonable and therefore unacceptable.

A time for election of national representatives was allowed to pass, so the citizens could, by their votes for representatives in the government, approve or disapprove of their government's actions.

After the election, the sovereign again did not provide a reasonable explanation or redress.

The petitioners declared that their sovereign and their nation had abandoned them, and rationalized that therefore they must by necessity be independent.

Through those steps, a precedent process was established for seeking a redress of grievances which could lead one of three possible outcomes; either correction, reasonable explanation, or national separation.

Note that in the War between the States, the southern states did not follow this precedent. They simply issued general written complaints, each state on their own, not collectively. They did not attempt reconciliation. Instead, they basically just improperly claimed a right to secession at will and started shooting at northerners.

In modern America same process of petitioning for a redress of grievances for violations of the constitution can be used as was used in the 1770's. Even a single state could do this. Perhaps smaller representable units such as counties or cities could be petitioners with a variation of the same process addressing both the state and national governments.

If proper and due process is followed, and all parties are aware of the three possible outcomes, a single state, or perhaps a single city or county, can set an agenda for constitutional reform.

In the colonies the constitution was more than just a set of writings. The values and the expected resulting actions of the government also formed the British constitution. There were also colonial charters, which the colonists referred to as constitutions, as well as other writings such as the Magna Carta, but the British constitution encompassed the whole design of government. The American people today also have a civil constitution (lower case 'c') and its extension, a written Constitution (upper case 'C'). Our civil constitution includes the principles laid out in the Declaration of Independence such as our equality as moral beings and our possession of unremovable natural rights that descend from the Almighty and not from people. Our civil constitution also includes such things as our belief in liberal democratic-republican government, our belief in a system of government controls through a system of checks and balances, and our belief in natural (rational) principles of governments in contrast to rule by dictation from entitled classes.

In keeping with the precedent established by the Declaration of Independence, when petitioning for a redress of grievances, our petitioning state could properly address not only issues of conformance to the written Constitution, but also issues of conformance to the civil constitution. In other words it could address problems with the design of the written Constitution.

I suggest that a small group of states, even a single state, or county, or city, could start an effective process of constitutional (lower case 'c') reform by initiating a process for a petition of redress of grievances, if the people of those bodies were willing to accept the possibility of separation. I suggest that it is more likely that this would happen than pretty much all other plans and schemes for reforms that are being worked on today, partly because this approach is in keeping with due process and with American tradition and values, and partly because it is much much easier for a smaller group of people to demand reasonable and rational change than it is for two-thirds of the states to agree on an agenda or for the national government to suddenly decide to correct itself.

The possibility of separation is essential to such a process. Without it neither the sovereign citizens and nor their government have any strong motivation to act on the petition. The petition would simply be a list of whines; easy to ignore.

There is no reason to believe that this proper action would lead to violence as happened in the Revolutionary War or the War Between the States. The American people in general are not as irresponsible and irrational as Parliament was in the 1770's. A repetition of the process that led to the creation of this nation would most likely be respected by the people of the states remaining in the existing and non-conforming US.

A very real concern would be the potential for economic instability that could result from such an action.

The key question then is whether there is a state (or states or perhaps city or county) where the citizens can demonstrate that the US government has gone so off track that it is no longer governing per our constitution, and whether the people of that state believe it is more beneficial to themselves to operate without an association with the US government. If there is such a state profound changes can happen, and they can happen with relative ease.

I suspect that such a decision by a population today would be greatly influenced by the lack of apparent financial dependency those people have on the federal government.

The process for initiating reform is relatively straightforward. You follow the same (or very similar) process used in the 1770’s.

You start with a bill of rights derived from the civil constitution, and then add documentable violations of those rights by the government, and documentation of the harms caused by those violations. Loss of a right itself is loss (no matter what the Supreme Court says). Add to the petition documentation of violations of the US Constitution both as violations themselves and as illustrations of symptoms caused by the violation of the civil constitution. Document that the petitioners want resolution, not separation. Document how it is that the persons creating the petition are proper ambassadors of the petitioners, and have the sovereign work with this group. Document the process for redress of grievances used in the 1770’s and how it is the same process being used today, with variations rationalized. Make sure the three possible outcomes are made absolutely clear. Address the petition to the sovereign citizens, not the government. Write the petition in the common language or the sovereign citizens, not the language of lawyers (no “Whereas” statements, etc.). Send copies to everyone who has a vested interest. Provide time for elections to occur between responses to affirm that the resultant actions represent the will of the people.

The outcome of the execution of such a petition would almost certainly be a constitutional convention. The list of grievances would become the issues discussed by the convention. The petitioners could properly request the sovereign citizens to address their grievances through a Convention of States if the petitioners contend that Congress is too involved in the abuses to address the petition objectively. Other reasonable requests could be made, such as a request to remove the political parties themselves from the process of reform if they are part of the issues being addressed, or a refusal to recognize Supreme Court rulings if the court is too involved in the abuses. (Congress, the Court and the parties would never exclude themselves on their own volition.) If the legislatures in two-thirds of the States supported and requested this, a Convention of States would occur.

I believe this describes how more meaningful reform could occur. It is no more radical than the process the led to the Declaration of Independence because it is the that process. It also follows the due processes of reform provided in Article V. Now you can dig into the deeper causes of problems instead of trying to work around the symptoms and by praying for the “right” election results.

To overstate the obvious, the petitioning states (or cities or counties) would be the ones setting the agenda for national government reform.

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Scott Amorian

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.