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Does Administrative Agency Adjudication Violate the Vesting of Judicial Power in the Courts (and Due Process)?

In recent years, much attention has been paid to the power of administrative agencies to adjudicate cases and to receive deference from the courts. While I have criticized such adjudication and deference as inconsistent with the separation of powers as a political principle, what about the Constitution’s original meaning? Do these features of modern government conform to the original meaning? The issue is complicated, but extremely important.

Let’s start with adjudication by administrative agencies. The Constitution vests the judicial power in the federal courts. But what is the judicial power? One possibility is that it is the power to make decisions in certain types of cases. For example, under one influential view, the final decision as to a potential infringement upon a person’s common law rights is judicial power. And therefore that decision must be made by a court. Under this view, when the government regulates a person’s use of their property, that decision must be adjudicated by a federal court (rather than an administrative agency). If this were the Constitution’s original meaning, it would be part of an argument that administrative adjudication is unconstitutional.

But is that the correct original meaning of judicial power? Since the language of the term is not clear, one must look more deeply to determine its meaning. One possible way to understand the legal meaning of a term that refers to an existing institution is by reference to the rules and practices of that institution. Under this view, one might conclude that the judicial power had the meaning mentioned above if the judiciary regularly adjudicated cases involving common law rights. The argument would be even stronger to the extent that this was understood to be a rule governing the judiciary and to the extent it was a stable rule.

The problem with this argument, as applied to the judiciary, is that it is not clear the judiciary always decided these common law cases. One argument against the judiciary having decided them is associated with the public rights doctrine, which was endorsed by Justices Scalia and Brennan. They argued that sovereign immunity prevented an individual from suing the government. Since the government did not have to provide any relief, the government could choose to provide lesser protection in the form of administrative agency action rather than the greater protection in the form of judicial review.

Let’s assume that Scalia and Brennan are correct that the judicial power argument does not cover cases where sovereign immunity is involved. But that is not the end of the matter. While individuals could not sue the government, they could often sue the officer who enforced the law. This ability to sue the officer was not a mere accident, but a crucial aspect of the law that allowed a government, which was protected by sovereign immunity, to be subjected to the rule of law.

These lawsuits against the officer were regularly brought in court. They allowed the individual to recover damages for the violation of their rights. And they did not confer deference on the government. Under this view, then, the judicial power argument would not require lawsuits against the government to be in court, but would require that the government allow lawsuits against government officials to be in court. This understanding of the Constitution would significantly cut back on administrative agency adjudication.

While I have made the argument in this post based on the judicial power, it might also apply as to due process. Under that clause, no person could be deprived of property except pursuant to procedures that were traditionally followed.

In the end, this argument suggests that a key portion of the administrative state is unconstitutional. While the government may have discretion to act outside of the courts, its officers often will not. And that will supply significant protection to the people.

Reader Discussion

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on May 17, 2018 at 11:18:13 am

Interesting analysis!

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Paul Binotto
on May 17, 2018 at 12:10:12 pm

My reading of Art. III is that the judicial power is divided between Congress and the Supreme Court and that outside of the Supreme Court's narrow slice of original jurisdiction, the inferior federal courts and tribunals (Art. I, § 8) are very much the creatures of Congress under the Exceptions and Regulations clause of §2.

The broad outlines of this argument are set out in Tara Grove's "The Exceptions Clause as a Structural Safeguard" (2013) http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2578&context=facpubs

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EK
on May 17, 2018 at 13:26:57 pm

The Exceptions and Regulations Clause of Article III, Section 2, by its terms only authorizes Congress to limit the appellate jurisdiction of the Supreme Court. It does not permit Congress to delegate judicial power to non-Article III tribunals, like administrative agencies and ALJs.

As to the “public rights doctrine”, that doctrine (which is without any basis in the text of the Constitution) has been stretched far beyond the limits of what might be justified by sovereign immunity - a doctrine which is also without any foundation in the text of the Constitution and which is historically justified as a corollary of the notion that the sovereign, a king who ruled as a matter of divine right, “could do no wrong.” Thus, the very foundation of sovereign immunity is antithetical to the idea that Americans are citizens, not subjects, and that government derives its authority from the consent of the governed rather than divine ordination. See Erwin Chemerinsky’s article on why sovereign immunity has no place in American jurisprudence, published in the Stanford Law Review (2002, I believe, but I could be mistaken). BTW, I think this is one of the very few cases (maybe the only one) where I find myself in agreement with Chemerinsky.

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Daniel Artz
on May 17, 2018 at 14:46:43 pm

Clearly, ALJs hearing appeals from decisions made by administrative agencies are Art. III judges; they hold their positions "on good Behavior" and their compensation cannot be "Diminished" during their term in office. What they are not is "Officers" of the United States under Art. II, § 2, who can be removed only by impeachment under Art. II, § 4.

Please say why you believe that the Constitution prohibits Congress from delegating its judicial power to judges who are not also "Officers" under Art. II, §2. I don't see that anywhere in the Constitution.

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EK
on May 17, 2018 at 14:47:59 pm

re: 1st paragraph:

Absotively! It would seem that Congress has a supervening or regulatory power OVER the Judicial NOT the Judicial Power itself, irrespective of the manner in which opne prefers to define the Judicial Power. consequently, as the Judicial Power does NOT reside in the Legislative, it is, both by definition and by constitutional grant (or lack thereof), not within the powers of the Legislative to delegate that which it does not possess.

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gabe
on May 17, 2018 at 15:17:57 pm

EK's reading and reasoning of the Constitution and on ALJ's is as curious as it is clever, but by neither of these avenues can I make my way to seeing they are correct.

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Paul Binotto
on May 17, 2018 at 15:32:21 pm

No, ALJs are most definitely NOT Article III judges! They are not appointed by the President, they are not confirmed by the Senate, and as Executive Branch junior officers, they serve at the pleasure of the President. As to why Congress has no authority to delegate judicial power, that should be patently obvious from the text of Article III, Section 1.

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Daniel Artz
on May 17, 2018 at 16:52:15 pm

It should be patiently obvious that ALJs clearly fall within the plain language of Art. III, § 1; viz.:

"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

Believe it or not, this exact language applies to all ALJ appointments. If you have some Constitutional grounds for distinguishing between Art. III judges who are also officers under Art. II, § 2, and ALJs who are Art. III judges who are not officers under Art. II, § 2. Tell me what it is; I can't find it in the Constitution.

The only difference I see is that one class is an officer of the US with general jurisdiction and the other is not an officer of the US and has very limited jurisdiction.

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EK
on May 17, 2018 at 16:54:22 pm
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EK
on May 17, 2018 at 17:02:05 pm

So I just finished writing a brief to the Supreme Court concerning the legislative vest clause for Gundy v. United States. But we also talked a bit about the executive vesting clause which in some ways is closer to the judicial vesting clause. The legislative vesting clause says "ALL legislative powerS", it is plural and vests in Congress all powers of a legislative nature. But the executive vesting clause only vests "the executive power" which is what the Court described in Myers v. United States, 272 U.S. 52, 163–64 (1926), that is “the general administrative control of those executing the laws.” In other words, "the executive power" is not all executive powers. It is only control over those that use executive powers. The same could also apply to the judicial branch. This would mean that any executive agency using powers of a judicial nature (backward looking to make a determination if the facts meet the law), must be reviewable by the courts, but do not necessary need to be done by the courts in the first instance. The exception to this rule must be from the Due Process Clause, where if a person's life, liberty or property are taken, those must be done by the courts in the first instance.

This allows things like the determination of social security benefits to be done by the executive branch, but must reviewable by the Courts for error. But if a person is accused of a crime and going to be punished, then it must be done by the courts directly (which is the due process clause and not the vesting clause). Its a very elegant system, if you take that interpretation.

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Devin Watkins
on May 17, 2018 at 17:06:13 pm

The ALJs are clearly officers, they wield incredible power over people's lives and make the final call as to various evidence presented. They are also clearly not Art. III judges, as they can be removed for things other than impeachment.

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Devin Watkins
on May 17, 2018 at 17:58:30 pm

Interesting observation and a very astute one! "Its a very elegant system" - it truly is!

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Paul Binotto
on May 17, 2018 at 18:02:46 pm

For while I find your interpretation interesting, my reading and reasoning is much more in line with Devin Watkins', Mr. Gabe's & Daniel Artz's, and I refer you to their commentary, as they articulate the position much better than I am capable.

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Paul Binotto
on May 17, 2018 at 19:02:54 pm

Devin:

Re: "first instance" comment(s):

I believe that Rappaport has also expressed such a view (admittedly a conditioned one) AND superficially it appears to be not unreasonable. I question the limits that you place on the "Executive Power" as it may be more appropriate to view such powers as somewhat more extensive than the mere "supervising" of executive personnel, more specifically foreign relations, initial treaty negotiations, etc. However one defines those powers, the question remains as to what is the nature and extent of due process *due* when any manner of deprivation may be imposed by a judicial or quasi-judicial body. In Dimaya did not Justice Gorsuch express such a concern? - a concern with the manner and level of deprivation routinely imposed by Executive agencies?

One may argue as to the extent of the Executive's "executive powers, indeed one may argue (as I hope will soon be the case) of the Executive's "legislative powers" BUT I do not see any way in which one can properly argue that the Executive has Judicial power. We are not here talking about obtaining a license or building permit; instead we are talking about forfeitures, fines, restrictions on commerce, etc. Ought not these deprivations be considered, and if appropriate, imposed by the Judicial?

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gabe
on May 17, 2018 at 21:47:45 pm

If you look at the controlling statutes, you will see that ALJs do NOT hold their tenure “during good behavior”, as all Article III judges do, and as Article III of the Constitution requires. The appointment of Article III judges - District Court Judges and Appeals Court Judges and Supreme Court Justices - is governed by Title 28 of the U.S. Code, and for both District Court judges and Appeals Court judges (but NOT Bankruptcy Court judges or Magistrate judges), the statutes explicitly provide for appointment by the President, with advice and consent of the Senate, and for tenure “during good behavior.” That is NOT the case with ALJs, whose employment is governed by Title 5 of the U.S. Code. Subject to certain limited protections available to all civil service employees of the Executive Branch, ALJs can be removed for cause without impeachment (and at times even without cause), and have no guaranty of tenure “during good behavior” under the controlling statutes, see 5 U.S. Code, subpart B.

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Daniel Artz
on May 18, 2018 at 12:20:00 pm

The term "officer" has a technical meaning. It means that the actions of an "officer" can bind the government. Sometimes its called signature authority in the civil service. Federal district court judges have signature authority and their decisions bind the government unless appealed. ALJs do not have signature authority and their decisions are subject to review by the agency before they are final.

If you read Art. II, you will notice that it is only officers that need to be impeached. It is also true that while many executive appointees become officers upon confirmation, the president can still remove them. Impeachment is important only when the executive wishes to retain an officer that Congress wants removed.

The distinction is between officers and mere employees is also the distinction between Art. III judges of general jurisdiction and ALJs of limited jurisdiction.

There is a line of thought that the idea that district court judges can removed only by impeachment is base on custom and is not required by the Constitution.

See: https://www.yalelawjournal.org/forum/removing-federal-judges-without-impeachment

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EK
on May 18, 2018 at 13:27:13 pm

That is simply not a correct definition of officers as it was understood at the founding. Here is how Chief Justice John Marshall described an "officer" in United States v. Maurice, 26 F. Cas.
1211, 1214 (C.C.D. Va. 1823): "An office is defined to be “a public charge or employment,” and he who performs the duties of the office, is an officer. If employed on the part of the United States, he is an officer of the United States. Although an office is “an employment,” it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed; it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer."

It has nothing to do with final binding authority. That is simply false. Binding Supreme Court precedent says otherwise as well. For instance, the Court has held that Court clerks (with no binding authority for anything as all their decisions can be reviewed by the judge they a clerk for), are officers in Ex parte Hennen, 38 U.S. 230, 260 (1839) (“These clerks fall under that class of inferior officers, the
appointment of which the Constitution authorizes Congress to vest in the head of
the department.”).

I was at the oral arguments for the Supreme Court in Lucia (concerning this question), and many of the Supreme Court Justices didn't buy it (even the left wing ones). As Justice Kagan said of this "rule": And I guess it seems to me like the test actually, it's sort of the opposite, the test you would make up if you were doing everything on a blank slate. But I don't really see what the source of this test is." That is because, that is what it is, "made up" with no basis in what the Founders actually said.

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Devin Watkins
on May 18, 2018 at 14:03:21 pm
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Don Evanson

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.