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Administrative Adjudication as a Violation of Due Process

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.

Reader Discussion

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on May 25, 2018 at 10:52:21 am

I'm not following this.

If someone sues an administrator IN COURT and the court dismisses the claim based on sovereign immunity, what does that have to do with administrative adjudication? The issue of sovereign immunity seems distinct from the issue of how administrators reach their decisions--that is, whether an administrator grants to a private party the right to present evidence and argument on his own behalf, or not.

I agree that private parties should be entitled to compensation when they are harmed by government error (except perhaps when government is acting as a Good Samaritan)--even when the error was in good faith. This is an abridgment/rejection of sovereign immunity. But this policy should apply regardless of whether the error arose after an administrative adjudication.

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nobody.really
on May 25, 2018 at 11:47:56 am

This argument would appear to revolve around the meaning of "private capacities."
Were the Port Tax collectors in post revolutionary times acting in their private capacities when they impounded (wrongfully, as it turned out) a vessel or overcharged on import fees?

It is a somewhat tenuous link between the "effects" of the right of sovereign immunity upon the early courts and the right of citizens to sue in said courts AND the current practice of administrative adjudication. Is Rappaport arguing that the past practice of sovereign immunity simply denies us a "history" or tradition of citizens suing the federales and thus we are unable to base a claim of unconstitutionality for administrative adjudication upon a case record of such suits or is he arguing something more - perhaps that the Judicial Vesting Clause does not, in fact, provide such opportunities for citizen litigation against the Federales?

Not clear to me either.

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gabe
on May 25, 2018 at 13:47:42 pm

Isn't the judicial power problem with agency adjudication that it is the judicial branch, not the executive branch, that is supposed to exercise judicial power? Administrative law judges are employees of the agency and arguably beholden to the agency, not Article III judges of the judicial branch making independent judicial decisions using independent judgment. Referring to historic practices doesn't really answer the question of agencies exercise of judicial power because the Constitution was intended to address past executive power abuses.
See Art. III: "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."

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Fredrick Hagen
on May 25, 2018 at 14:16:58 pm

Let me try to explain.

I am looking at the question of Congress not providing procedures and remedies to the public when the government harms them. They do that by providing administrative adjudication instead of judicial decisionmaking. One justification for that is sovereign immunity. My argument is that a lawsuit in court against the government officer was a traditional substitute and that is what the public is entitled to under due process, based on that tradition.

Frederick says that the Constitution was intended to address past abuses. In some cases that is true, but in general the Constitution was attempting to provide constitutional protection for common law rights that they knew from past experience could be ignored or distorted. That is one common understanding of due process.

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Mike Rappaport
on May 25, 2018 at 14:42:20 pm

OK thanks (for me not Frederick) but back to my question:

Doesn't your proposal depend upon how we define "private capacity", that is to say, if it is determined that the gov't officer was acting *officially* are we not precluded from seeking relief in the courts. Who determines "official" vs "private"?

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gabe
on May 25, 2018 at 21:14:45 pm

Gabe: It does depend on that. But there was a tradition as to that matter and so the historical tradition would decide the matter.

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Mike Rappaport
on May 27, 2018 at 18:09:47 pm

There seems to be a fundamental logical flaw in your logic when you reach the conclusion that the “judicial power” referenced in Article III of the Constitution must be limited to only those matters which were traditionally adjudicated by the common law courts. In interpreting the phrase “judicial power”, you must consider the context, specifically the fact that this phrase is used in the allocation of what the founders thought were the three essential functions of governmental authority - legislative power, executive power, and judicial power. If you assume that the judicial power extends only to such matters as were traditionally adjudicated by the common law courts in England, do you make a similar assumption regarding both the legislative power and the executive power - that legislation can be found unconstitutional notwithstanding the express delegation of authority under Article I, Section 8, because it far exceeded the scope of the legislative traditions of the English Parliament pre-1776? Under such an assumption, could you justify the Social Security Program, the Clean Water Act, the Clean Air Act, or Medicare? But if such a traditional scope limitation is NOT applicable to Article I’s delegation of the legislative power or Article II’s delegation of the executive power, then what justification is there for applying such a limitation to the judicial power? The much more rational approach is to view the three phrases as functional divisions of ALL exercises of governmental authority - an exercise of governmental power which involves setting broad policy objectives and rules of conduct applicable to all equally involves the exercise of legislative power, an exercise of authority which involves the implementation of such policies and the enforcement of duly enacted rules of law involves the executive power, and any exercise of governmental authority involving the interpretation and construction of those laws in resolving concrete disputes involving discrete individuals involves the exercise of the judicial power. Under that approach, the traditional limits of common law courts or their jurisdiction is simply irrelevant - if it involves the resolution of concrete disputes among discrete “persons” (whether real or juridicial) or between discrete “persons” and the government, then it fals within the functional realm of the judicial power. And all judges, AlJs and others, who do not enjoy the protections provided by Article III are unconstitutional.

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Daniel Artz

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