Media reports on Kavanaugh’s views on executive power too quickly assume he would shield the executive branch during criminal investigations.
Michael Greve’s earlier post on Administrative Law has inspired me to write a couple of posts about the subject.
One of the key issues in Administrative Law is that administrative agencies do not conform to the separation of powers. In a meaningful sense, agencies possess legislative, executive, and judicial power, which makes them a separation of powers monstrosity.
In this post, I will discuss an aspect of this problem: the combining of prosecutorial and adjudicative functions in the agency.
Prosecuting and adjudicating seems like an obvious violation not merely of the separation of powers but also of the rule of law. It has long been recognized that a man should not be a judge in his own case, and allowing administrative agencies to adjudicate their own prosecutions does exactly that. As a result, agencies may not faithfully follow the existing law, but instead bias the adjudication towards their own interests.
The Administrative Procedure Act, passed in 1946 to impose some constraints on agencies, established some checks on an agency’s power to adjudicate its own cases. In cases involving formal adjudication – those adjudications that are subject to the strongest procedural checks – the agency adjudicator (typically an administrative law judge or ALJ) cannot be supervised by an agency official who prosecutes. This is a significant check, and is all for the good.
But there are two significant exceptions to this check. First, if the head of the agency adjudicates the case — if, for example, the Federal Trade Commission itself adjudicates — then it can both decide to prosecute the action and adjudicate it.
Second, even if an ALJ adjudicates and decides against the agency, the agency can generally appeal the decision to itself and the agency is largely free to reverse.
It is true that these adjudications by the agency are subject to judicial review by the courts. But that is a limited check as well. When the courts review agency actions, they confer deference on the agency’s decisions as to facts, law, and policy. So, yes, judicial review is a check, but it is a limited check because the agency gets deference. Judicial review will only prevent the most problematic decisions reached by the agency.
In my next post, I will discuss how this problem might be resolved.