Notice & Comment

Walking the Judicial-Administrative Line, by Daniel B. Listwa

The line between a court and an administrative agency is fuzzy—but two cases this Term suggest that the Justices have an appetite for making it at least somewhat sharper. A couple of weeks ago, the Court heard Dalmazzi v. Unites States, a case in which the Justices made the unusual move of granting the motion of a professor, UVA’s Aditya Bamzai, to participate in oral argument as amicus curiae. Professor Bamzai has challenged whether the U.S. Court of Appeals for the Armed Forces (CAAF)—an Article I, legislative court—is a “court” for the purposes of the Supreme Court’s appellate jurisdiction. During oral arguments, this jurisdictional issue elicited questions from the Justices on how CAAF can be distinguished from other agencies situated in the executive branch.

Ayestas v. Davis, argued in October, is another case that raised, to quote Justice Breyer, “an unusual jurisdictional argument.” Ayestas addresses a judge’s denial of funding to investigate capital habeas ineffective-assistance-of-counsel claims. But, at oral argument, the Justices appeared more interested in the Texas Solicitor General’s argument that that the judge’s denial could not be reviewed by the Court because it was a nonjudicial “administrative” order.  According to the Texas SG, the judge’s authority to grant funds to habeas petitioners for experts and investigators is conferred to her in her administrative, rather than judicial, capacity.

The judicial-administrative line is at the forefront of each of these jurisdictional issues. Dalmazzi raises the question of when a legislatively created, executively staffed agency can rightfully be considered a court—and not just an administrative agency executing its adjudicatory function. At stake is the possibility that direct review of CAAF by the Supreme Court constitutes an unconstitutional expansion of the Court’s original jurisdiction. Ayestas asks when a judge ceases to exercise her judicial authority and instead begins acting in her role as an administrator. The decision could seal off a whole host of judges’ actions from appeal. While these questions of jurisdiction have obvious practical importance in the pending cases and those like them, their resolutions also have the potential to tell us something more fundamental about the nature of our administrative state. Comparing how the Court ultimately decides each of these cases may provide insight into what it is the distinguishes judging from bureaucratic administration.

In both cases, the questions raised have constitutional valence. However, one possible route towards resolving these jurisdictional issues is to leave the line drawing to Congress. While there must certainly be some constitutional limits, the Court could set a course that leaves the sort of close cases argued this Term to the legislature’s discretion. Professor Steve Vladeck, the attorney for the petitioner in Dalmazzi, suggested as much when he pointed to the various statutory indicators that Congress intended CAAF to be a court.

I make a related argument about Ayestas in an essay just up on JREG Bulletin. In past cases distinguishing a judge’s “administrative” acts from her “judicial” ones, courts have focused on two indicia: (1) whether the decision was made through an adversarial process and (2) whether it could be appealed in the traditional way. See, e.g., United States v. French, 556 F.3d 1091 (10th Cir. 2009). As I explain in the essay, while these indicia are constitutionally derived, they cannot be understood as representing an actual constitutional boundary between the administrative and judicial roles. Instead, pointing to the Court’s precedent, I show that the ultimate determination rests with Congress.

That leaves us with an exercise in statutory interpretation. While Congress may have clearly labeled CAAF a court, no such helpful indicator was affixed to 18 U.S.C. § 3599(f), the provision granting the power at issue in Ayestas. As a result, the Court will need to search more broadly for contextual clues. At oral argument, Justice Breyer suggested looking at the provision’s placement in the U.S. Code. As I explain in my essay, I think that is the right move. Building off my recent work on the relationship between statutory interpretation and the codification process, I explain how § 3599(f)’s interesting codification history can give us insight into the jurisdictional question at issue.

While it is an open question how the Court will decide these cases, it is worth noting that the Justices seem very interested in the jurisdictional nature of the judicial-administrative line. Depending on what happens this Term, we might very well see more of these “unusual jurisdictional arguments” appearing before the Court in the future.

The full essay examining the jurisdictional question in Ayestas v. Davis, with particular emphasis on Justice Breyer’s argument from codification, is in JREG Bulletin and can be found here.

Daniel Listwa is a student at Yale Law School.

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