Originalism is the way we all want to be read, so why doesn't it have more adherents?
Like many others at the moment, I am making my way through Philip Hamburger’s Is Administrative Law Unlawful? One of the most shocking chapters is his chapter on America’s “Return to Extralegal Adjudication,” a problem that constitutional law had originally aimed to constrain, but which has re-emerged in the context of the modern administrative state.
I knew that there were problems with administrative adjudication – I just didn’t grasp how pervasive the problems were until Hamburger laid them out so systematically.
Hamburger notes that “Scholars generally recognize that administrative adjudication is in tension with the Constitution’s grant of judicial power to the courts and its guarantee of due process.” Administrative adjudication also, he adds, “restores an extra legal judicial regime….never since the time of James I has the extralegal challenge been so profound.”
What is so problematic about administrative adjudication? Agencies use it to bind subjects, both in civil and in criminal cases. The adjudicators can be agency heads, in which case political appointees are judging, which sacrifices a core constitutional concept of an independent judiciary. Agency heads and other high-level adjudicators can hear appeals of decisions in cases where they initiated the investigation or prosecution. The adjudicators can also be Administrative Law Judges (ALJs), who do have tenure and salary protections; however, ALJs are not really independent because they are bound by the administrative regulations of their superiors.
Finally, the adjudicators can be low-level agency staff engaged in “informal adjudication. This case, Hamburger argues, is “even worse” because these administrators “have even less of judicial office, and less protection in it, than administrative law judges.” In other words, they make importance decisions without any of the qualifications or protections that judges have.
“All in all,” Hamburger concludes, “even the least biased administrative adjudicators act in ways and under pressures that would not be tolerated in real judges.”
In addition to the problems of the adjudicators themselves, the administrative process threatens basic procedural rights guaranteed to those accused of criminal offenses. Agencies can engage in open-ended investigations without grand juries. They have inquisitorial power to look for violations of the law, rather than the passive power merely to hear cases brought to them. Of course, the executive has investigatory power, but only courts (in a constitutional system) can investigate with the force of law – that is, bind people to give information.
Modern agencies can also bring charges without a grand jury indictment, in conflict with the Fifth Amendment. They may refuse to let defendants face their accusers or see the charges against them, in conflict with the Sixth Amendment. They reach important conclusions without petit juries, in conflict with the Seventh Amendment. They are allowed to operate under looser standards of evidence than judicial tribunals, admitting hearsay evidence and deciding not to allow discovery to private parties. They rely on a diminished burden of proof: “preponderance of evidence” is all that is required to support an order. Agencies can require regulated entities to testify against themselves, violating the protection against coerced self-incrimination. And things get even worse in informal adjudicatory proceedings, which are “utterly summary, without even the pretense of dispassionate adjudicators and proceedings.”
So what are the remedies for this problem? Michael Rappaport has suggested on this site that we explore ways to shift adjudicatory power back into Article III courts. His tentative proposal was that we “could employ Article III administrative courts instead of Administrative Law Judges (ALJs) to adjudicate.”
I support that idea as a long-term objective, but it is also worth thinking about more piecemeal solutions that are likelier to be enacted in the near term. (It would also fail to cover much of informal adjudication, which Hamburger identifies as even more threatening to the rule of law.)
Hypothetically, some procedures could be added to informal adjudication, either for specific agencies or for the administrative state as a whole. (If I’m not mistaken, many agencies self-impose procedures on their low-level adjudicators through manuals, etc.)
To this could be added some formal requirement that an agency head not participate in a matter in which he or she has investigated, prosecuted, etc. Finally, several of the areas in which administrative adjudication is in tension with basic guarantees of the Bill of Rights should be revisited. Agencies should not be able to impose criminal penalties such as fines without the involvement of juries, and with diminished standards for evidence. They should not be able to ignore rights to be free from self-incrimination and to be notified of charges and face accusers. And the open-ended inquisitional power should be reconsidered and limited in some manner. Reforms along these lines would not strike at the root of administrative adjudication, but they would help to cut back the most glaring and obvious abuses and prevent agencies from becoming overzealous.