Administrative Adjudication and the Rule of Law

Abstract

Many scholars have criticized the use of adjudication by administrative agencies as a means of making law. Such scholars have contended that adjudicative lawmaking by administrative agencies suffers from a number of defects - including decreased public participation, a lack of prospectivity, and a tendency to arise in fact-bound circumstances - that make it inferior to legislative lawmaking by administrative agencies. These critiques have led authors to conclude that adjudicative lawmaking by administrative agencies should be discouraged, in all but very limited circumstances.

Relying on the case study of immigration law, this Article assesses this conventional understanding within the context of a rule of law framework. It ultimately concludes that - at least from a rule of law perspective - adjudicative lawmaking promotes a number of important "goods." Indeed, there are several respects in which adjudicative lawmaking appears to be not only comparable, but superior, to legislative lawmaking by administrative agencies.

These conclusions differ substantially from the conclusions reached by prior scholars. As a result, this Article also rejects the prescriptive conclusions of prior authors, instead concluding that precipitous declines in adjudicative lawmaking by administrative agencies should be viewed with concern. The Article concludes by briefly discussing potential means of reversing precipitous declines in adjudicative lawmaking, based on the experience of the Board of Immigration Appeals.

Keywords: Administrative Law, Immigration, Adjudication, Rulemaking