The New Separation of Powers Formalism and Administrative Adjudication

52 Pages Posted: 11 Jan 2022

See all articles by Robert L. Glicksman

Robert L. Glicksman

George Washington University - Law School

Richard E. Levy

University of Kansas - School of Law

Date Written: January 11, 2022

Abstract

The Supreme Court has entered a new era of separation of powers formalism. Others have addressed many of the potentially profound consequences of this return to formalism for administrative law. This paper focuses on an aspect of the new formalism that has received little attention—its implications for the constitutionality of administrative adjudication. The Court has not engaged in an extensive discussion or reformulation of its separation of powers jurisprudence concerning administrative adjudication since its highly functionalist decision in Commodity Futures Trading Commission v. Schor more than three decades ago, but recent opinions of individual Justices show signs that such a doctrinal restatement may be on the horizon.

Despite the current lack of doctrinal clarity, administrative adjudication is generally valid either because Congress may vest the determination of so-called “public rights” in non-Article III tribunals or because administrative agencies adjudicate cases as adjunct factfinders for the courts. The foundation for the emergent Article III formalism, advanced most prominently by Justice Gorsuch in a pair of cases involving the legality of administrative adjudication of patent validity, is a categorical rule that Article III requires an independent judiciary to have decisional authority in adjudications that affect private property (and other protected rights), in much the same way that the unitary executive principle requires Presidential control over matters within the executive branch. Under this view, however, the judicial power is subject to a formalistic, historically defined exception for matters of public rights, which can be adjudicated without the involvement of the judiciary. This approach may be gaining traction as part of the broader resurgence of separation of powers formalism.

We argue, however, that Justice Gorsuch’s approach is flawed because it does not account for the structural role of the Article III judiciary. Although the cases have long recognized that Article III has both structural and individual rights components, separation of powers is ordinarily understood primarily in structural terms. Article III analysis therefore must account for the structural role of the Article III courts and protect the structural interests of the federal judiciary. Focusing on the structural issues raised by non-Article III adjudication highlights two essential points. First, the status and character of the non-Article III tribunal is critical to the separation of powers analysis—a point that is typically ignored under current doctrine. Second, the structural interests of the federal courts may be implicated even when the adjudication of a matter does not implicate any individual right to an Article III court, especially in light of the courts’ role in protecting the rule of law. The rule of law applies even when executive action does not deprive anyone of a private right.

Building on these points, our core argument is that, properly understood, most administrative adjudication is fully consistent with separation of powers formalism because it involves the execution of law by officials within the executive branch. In other words, the initial implementation of statutory provisions by agencies using quasi-judicial procedures is executive in character. This understanding brings coherence to the public rights doctrine that has long governed the constitutionality of administrative adjudication. It also reveals that the critical separation of powers question for administrative adjudication is the availability and scope of judicial review, rather than the propriety of initial administrative adjudication. It is the availability and scope of judicial review which determine the extent of any encroachment on the exercise of judicial power under Article III.

Keywords: separation of powers,administrative adjudication,formalism,functionalism,public rights,non-Article III adjudication,judicial review

Suggested Citation

Glicksman, Robert L. and Levy, Richard E., The New Separation of Powers Formalism and Administrative Adjudication (January 11, 2022). George Washington Law Review, Vol. 90, 2022, Available at SSRN: https://ssrn.com/abstract=4006442

Robert L. Glicksman (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

Richard E. Levy

University of Kansas - School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-9220 (Phone)
785-864-5054 (Fax)

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