Saving Agency Adjudication

63 Pages Posted: 7 Sep 2023 Last revised: 24 May 2024

See all articles by Aaron L. Nielson

Aaron L. Nielson

Brigham Young University - J. Reuben Clark Law School

Christopher J. Walker

University of Michigan Law School

Melissa F. Wasserman

University of Texas at Austin - School of Law

Date Written: September 6, 2023

Abstract

When discussing the federal judiciary, commentators typically fixate on the 800 or so “Article III” judges who are nominated by the President, confirmed by the Senate, and enjoy life tenure and salary protection. Yet most federal adjudication does not take place in federal courthouses at all. Instead, it occurs in nondescript hearing rooms in administrative agencies—if not telephonically. Indeed, the more than 12,000 agency adjudicators scattered across the federal government collectively issue millions of decisions per year on subjects ranging from Social Security and veterans benefits to immigration and patent rights. In recent years, however, scholars and agency adjudicators have raised alarms that agency adjudication may be reaching a crisis point. Following the Supreme Court’s lead, federal courts have begun holding that how agency adjudicators are appointed and removed violates Article II of the Constitution because these agency officials are not sufficiently subject to the President’s control. Political control, however, threatens the perceived legitimacy of the adjudicatory process, and perhaps sometimes its actual legitimacy as well. The more entrenched the unitary executive theory becomes, reformers argue, the greater the risk that decisional independence will collapse. Reformers therefore have advanced sweeping proposals to save agency adjudication, including most prominently creating a new “central panel” agency to house agency adjudicators, expanding the Article I courts, or even moving agency adjudication into Article III courts.

This Article examines these proposals to save agency adjudication and explains why none of them will work, at least as a general matter. Each proposed solution ultimately will not solve the problem and could have significant unintended consequences—some potentially catastrophic to the millions of individuals who participate in agency adjudication each year. One purpose of this Article therefore is to save agency adjudication from these well-intentioned but ultimately misguided reforms. But just because these proposals will do more harm than good does not mean that reformers are wrong to worry about the threat Article II poses to agency adjudication. Instead of fundamentally restructuring agency adjudication, however, we argue that Congress and federal agencies can more creatively use certain independence-enhancing tools that the Constitution itself provides, including prospectively raising the political costs of presidential interference in adjudicatory decisions and adopting self-imposed restrictions on agency-head appointment and removal. Unlike more sweeping and untested proposals, these longstanding tools do not raise constitutional concerns and will not cause systemic disruption. Yet they will safeguard decisional independence, thus saving agency adjudication from both Article II challenges and imprudent reforms.

Keywords: administrative law, agency adjudication, agency independence, removal power

Suggested Citation

Nielson, Aaron and Walker, Christopher J. and Wasserman, Melissa F., Saving Agency Adjudication (September 6, 2023). Texas Law Review, Forthcoming, U of Michigan Public Law Research Paper No. 24-001, U of Texas Law, Legal Studies Research Paper, BYU Law Research Paper 23-18, Available at SSRN: https://ssrn.com/abstract=4563879 or http://dx.doi.org/10.2139/ssrn.4563879

Aaron Nielson

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Christopher J. Walker (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

HOME PAGE: http://www.chrisjwalker.com

Melissa F. Wasserman

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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