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 of these proposed solutions 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 and imprudent reforms.
“Saving Agency Adjudication” valuably catalogues how we might, well, save agency adjudication. Why does agency adjudication need saving? As the authors explain on page 5, the “unitary executive theory of Article II” increasingly embraced by the Supreme Court is “potentially on a collision course” with safeguards designed to ensure agency adjudicators’ “decisional independence.” More than a catalogue, however, the article provides a critical interrogation of various reforms. Parts of it can make for a depressing read for someone concerned that the Supreme Court will put agency adjudicators in greater danger of removal or interference by political actors. That’s because the authors argue that various across-the-board proposals to deal with the problem would come at great cost, fail to provide real solutions, themselves be declared unlawful, or all of the above. At the end, and more hopefully, the authors urge reformers to instead consider a set of pragmatic and more legally sound tools that may appear modest but, they argue, could be deployed in various combinations to make a real difference. The article is a must-read for anyone interested in how best to chart a course forward when it comes to agency adjudication.
The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.