An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
In a recent post, I argued that administrative adjudication might be unconstitutional as a violation of the judicial power and due process. Upon reflection, however, I have come to the conclusion that the argument that such adjudication violates the judicial power probably does not work, but that the claim that it violates due process is still viable. Let me explain why.
The argument that administrative adjudication violates judicial power assumes that there was a tradition that the relevant issues were adjudicated in court. While I argued that there was no such tradition of controversies between private parties and the government being adjudicated in court due to sovereign immunity, there appears to have been a tradition of controversies between private parties and government officials in their private capacities. Thus, administrative adjudication would be unconstitutional to the extent that it deprived private parties of the ability to bring lawsuits in court against court government officials in their private capacities.
But I now realize there is a problem with this argument. Such lawsuits against government officials were not typically brought in federal court. Instead, they were brought in state courts, where the action typically was a tort suit against the federal official. Since the actions were brought in state courts, it is hard to argue that the tradition supports the conclusion that the constitutional provision vesting “the judicial power of the United States” in the federal courts requires that the actions be brought in federal court.
But while this is a problem for the judicial power argument, it does not affect the due process argument – that administrative adjudication violates due process if it does not allow private parties to bring lawsuits in court against government officials in their private capacities. One leading interpretation of the original meaning of due process is that it guaranteed individuals the type of procedures that they enjoyed at common law. Thus, if the common law allowed private individuals regularly to sue government officials in their private capacities in court (whether in state or federal court), then due process would require that they enjoy that right today. Presumably, the lawsuit could be bought in either state or federal court.
This result would be quite significant. Under this argument, due process would require that individuals be able to sue government officials in their private capacities for damages (and perhaps injunctions) for violation of their rights. And those lawsuits would have to be in courts.
This would render unconstitutional the typical remedies available today against government wrongdoing – suits for injunctions but not for damages. It would also render immunity doctrines that protect federal officials in their private capacities problematic.
Perhaps the federal government could preempt or cut back on these remedies in court, but I would argue that it could do so only if it provided a comparable remedy as a substitute.
Thus, if the argument holds, a central pillar of the administrative state might be unconstitutional.