Why We Need Federal Administrative Courts

46 Pages Posted: 27 Mar 2020

See all articles by Michael Greve

Michael Greve

George Mason University - Antonin Scalia Law School, Faculty; American Enterprise Institute (AEI)

Date Written: March 25, 2020

Abstract

Apart from criminal proceedings and a small enclave of constitutional right, virtually all disputes between citizens and federal agencies are decided by agency-appointed tribunals, not judges. Typically, the tribunals’ decisions are reversible by the agency and then subject only to highly deferential judicial review. This “appellate review” regime originated well over a century ago. It found its canonical formulation in the Supreme Court’s foundational decision in Crowell v. Benson (1932) and, in 1946, was effectively codified in the Administrative Procedure Act. The model has since been overlaid with a blanket of administrative common law, and it has been subject to a great deal of improvisation outside the APA’s default provisions. Despite the constant tinkering, however, and despite widely shared misgivings about its constitutional foundations and practical operation, the appellate review model has proven immune to any serious challenge.

This Essay mounts that challenge. It confronts the appellate review model with a stark but realistic and highly attractive alternative: a system of independent administrative courts, endowed with the institutional capacity and incentives to provide meaningful protection for citizens’ rights.

Many countries in the world feature such a judiciary. Prominently, Germany’s system of administrative courts rests on constitutional commands that categorically forbid administrative tribunals and instead require that disputes between the executive and private citizens must always be adjudicated by an independent court. While we cannot simply import that model, we can replicate its essential features, well within the confines of the Constitution and our legal traditions. In fact, institutional reforms along “German” lines might help us recover foundational domestic legal traditions that were lost or abandoned in the adoption of the appellate review model.

Keywords: Administrative Law, Administrative Courts, Administrative Adjudication, German administrative law, Crowell v. Benson, Lucia v. SEC, Article I courts, Comparative Administrative Law, Administrative Procedure Act, Judicial Review of Agency Action

JEL Classification: K20, K23

Suggested Citation

Greve, Michael, Why We Need Federal Administrative Courts (March 25, 2020). George Mason Legal Studies Research Paper No. LS 20-05, C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 20-09, Available at SSRN: https://ssrn.com/abstract=3561135 or http://dx.doi.org/10.2139/ssrn.3561135

Michael Greve (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

American Enterprise Institute (AEI) ( email )

1150 17th Street, N.W.
Washington, DC 20036
United States

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