NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss Administrative Law, including the history of the administrative state and modern debates about its powers. Today’s episode features Professor Gary Lawson, a William Fairfield Warren Distinguished Professor at Boston University School of Law. He has published nine editions of an Administrative Law casebook and authored or co-authored a Constitutional Law casebook, five books on constitutional and legal theory and history, and nearly one hundred articles. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: We’re going to discuss a fairly controversial issue - the legitimacy of agency adjudication. Professor Lawson, what are your thoughts on how to approach this? GARY LAWSON: Is there a constitutional problem with those non-Article Three, non-judge executive officers doing things that look like what judges do? That, I believe, is the single most difficult, long-lived, unresolved, possibly unresolvable question in all of American constitutional law. The reason why that one is so difficult goes to the heart of the whole scheme of separation of powers. The way separation of powers works is it vests, the constitution vests distinct kinds of governmental powers -- legislative, executive, judicial. In distinct institutions, Congress, the president, the courts. What the Constitution does not do is define what counts as legislative power, what counts as executive power, what counts as judicial power. It just assumes that most of the time people will know it when they see it. And often that's true. Particularly when you're distinguishing legislative power from executive power. It's harder to do that with the judicial power because it wasn't until the middle of the 18th century, just literally a few decades before the Constitution was ratified, that the judicial power became recognized as a distinct power of government. For most of English legal history, what we now call the judicial power was part of the executive power. It just was. The judges were agents of the king. So the whole notion of the judicial power as something distinct from the executive power is a very new thing at the time of the Constitution. So it's not like there was an enormous body of law or doctrine or prior understandings that would draw the lines between executive and judicial power. So we don't have a lot to go on there. As a result, we have spent two and a quarter centuries trying to figure out a way to draw that line. Nobody to my knowledge has succeeded in doing it. The answer may ultimately lie in something that shows up three years after the Constitution is ratified, and that is some language in the Fifth Amendment talking about how you're not supposed to deprive people of life, liberty, or property without due process of law. If due process of law requires the participation of an actual honest to goodness Article Three judge, then the answer may be that administrative adjudication that deprives people of life, liberty, or property would be problematic. Most administrative adjudication doesn't do any of those things. Most administrative adjudication deals with how the government is going to hand out benefits, hand out Social Security, hand out other forms of welfare. And if those decisions don't deprive people of life, liberty, or property, because you don't have any right to have it in the first place, then it wouldn't be a problem to have all of that done by administrative agencies. But that's all very speculative. This, as I said, is maybe the most complicated question in all of American Constitutional law. PUBLIUS: Let’s talk more about the difference between Article Three courts and administrative law courts. Apart from their purpose, do they operate the same way? What does it mean to be called a judge? GARY LAWSON: Article three of the Constitution, vests the judicial power in the federal courts. Other parts of the constitution define certain attributes of those federal courts, the two most important are, they have tenure during good behavior, sometimes mistakenly called life-tenure it's tenure during good behavior, they can be impeached and removed for misbehavior. And they also have guarantees against diminishment in salary while in office. Congress doesn't like the way federal courts are deciding cases, can't cut their salaries just to punish them for it. So there are certain baked in features that federal courts have to have. There is an enormous volume of adjudicatory decision making that happens before people who aren't Article Three courts, who don't have either of those, or both of those, constitutional protections. Those include, territorial courts, those in federally held territory. The military justice system, and a great deal of activity by administrative agencies that involves deciding sometimes who gets what benefits, and sometimes who gets million-dollar-a-day fines. So there are plenty of people who act like judges, look like judges, sometimes we even call them judges. Territorial judges, military judges, administrative law judges, but from a constitutional standpoint, they aren't judges. What are they allowed to do? What can't they do? The short answer, is that nobody the hell knows. This is one of the most unsettled, long unsettled, questions in all of constitutional law. It was unsettled two- hundred and twenty-five years ago, it's even more unsettled today. It's probably uncontroversial, that agencies can adjudicate, can apply law to particular facts, when they're dulling out benefits. Right? That's been accepted for a very long time, the more interesting question is whether you can have agency officials dulling out fines and penalties. Depriving people in the language of the fifth amendment, of Life, Liberty, or Property. Are they doing it with due process of law, simply because they hold lots of hearings, put on robes, and act like judges. Or do they actually have to be, honest to goodness, Article Three judges to perform that. Modern doctrine says, to a large extent, the limits of which are, unsettled, that they can do that. Particular there are two cases decided in the middle of the nineteen-eighties that make it very clear that agency officials can adjudicate even the kinds of claims, ordinary contract actions, that normally you would think of would be the stuff of courts. "But!" Says the supreme court, "They can't do too much of that. If they do too much of that, we've got a problem." And indeed there was a time when the federal bankruptcy judges, not real Article Three judges, but we call them that, had enormous authority to enter into decisions of this kind, and in nineteen-eighty-two the supreme court actually said that was a problem. And Congress has had to restructure the federal bankruptcy process so that the orders are actually signed by district judges, by honest to goodness Article Three judges, to make it official. We're still litigating the full contours of those limitations today, so it's not even settled fully today. So suffice it to say this is a question of some importance, to which as of this moment, we do not have a clear crisp answer and there is no prospect, I would say, no prospect at all that you're going to get an answer in the near future. PUBLIUS: Are there any recent relevant examples of problems or confusion that might be caused by non-Article Three courts? GARY LAWSON: Here's an example of the mess that we're still in, in trying to figure out what kind of adjudicatory functions can be performed by executive officials, even executive officials who call themselves judges, or have to be performed by honest to goodness, real Article Three judges. The Supreme Court decided a case involving a newly created agency called the PTAB. The Patent Trial and Appeal Board. This was part of a statute, the America Invents Act, that was supposed to simplify and stream-line the patent process. In particular, the worry was that there had been a lot of really bad patents, granted by an administrative agency, patent and trademark office, that were out there stifling innovation. Now if there's a bad patent out there, there has always long been legal methods for getting rid of those patents You challenge them in court, or more precisely, you infringe the patent, wait for the person who holds the patent to sue you, and then claim that you can't get sued because their patent is invalid because it never should've issued in the first place. And then you will have an honest to goodness Article Three court deciding the case, ultimately ruling on the validity of the patent. Everybody agrees, that's fine. You can do that. The America Invents Act isn't satisfied with that. It created this patent, trial, and appeal board as an administrative agency, they're called patent judges but they're not Article Three judges, they're administrative officers. And what this body does, is it hears complaints from people about supposedly lousy patents, it looks over the patents that have already been issued and are out there, and decides whether or not to cancel them. So you have an administrative body that's invalidating or canceling patents that have already been issued to someone. Can they do that? Well the Oil States case presented a kind of odd challenge to that process. Went around what I think are the main issues. If you have a civil case in federal court you normally get a jury. So they were claiming that by shifting this into the administrative process, they were being deprived of their right to a jury and the seventh amendment of the Constitutions' guarantees in civil cases, the right to a jury that you had seventeen-ninety-one. So by the time this case gets into the Supreme Court, last year, there's already a fairly settled body of law suggesting this is a real long shot. They're probably not going to win. And they didn't. They lost. Here's the more basic problem with the Patent Trial and Appeal board. It was alluded to in the supreme court decision but not actually argued. What this body is doing is canceling peoples patents. If you think patents are property, the kind of property the fifth amendment is talking about when it says, "don't deprive people of Life, Liberty, or Property without due process of law." Then you have the question of whether you can have an executive body, an executive agent simply making your property disappear without going though the process of an actual honest to goodness trial in an Article Three court. There is probably not a comparable problem with what most of the executive officials, who call themselves judges, are doing. Because most of what those people are doing is adjudicating benefits claims, Social Security benefits, Veterans benefits, federal welfare benefits of various kinds, right? So this, PTAB problem is a nice microcosm of the sorts of issues thar are posed when we have executive officials, not just deciding things, they can decide lots of things, but deciding things that actually dispose of peoples Life, Liberty, or Property. That does actually pose a serious risk of undermining the protections built into the process by Article Three. But as of this moment in time, the case law does not appear to be very receptive to that kind of argument. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we discuss Administrative Law, including the history of the administrative state and modern debates about its powers. Today’s episode features Professor Gary Lawson, the Philip S. Beck Professor at Boston University School of Law. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We’re going to discuss a fairly controversial issue - the legitimacy of agency adjudication. Professor Lawson, what are your thoughts on how to approach this? Is there a constitutional problem with those non-Article Three, non-judge executive officers doing things that look like what judges do? That, I believe, is the single most difficult, long-lived, unresolved, possibly unresolvable question in all of American constitutional law. The reason why that one is so difficult goes to the heart of the whole scheme of separation of powers. The way separation of powers works is it vests, the constitution vests distinct kinds of governmental powers -- legislative, executive, judicial. In distinct institutions, Congress, the president, the courts. What the Constitution does not do is define what counts as legislative power, what counts as executive power, what counts as judicial power. It just assumes that most of the time people will know it when they see it. And often that's true. Particularly when you're distinguishing legislative power from executive power. It's harder to do that with the judicial power because it wasn't until the middle of the 18th century, just literally a few decades before the Constitution was ratified, that the judicial power became recognized as a distinct power of government. For most of English legal history, what we now call the judicial power was part of the executive power. It just was. The judges were agents of the king. So the whole notion of the judicial power as something distinct from the executive power is a very new thing at the time of the Constitution. So it's not like there was an enormous body of law or doctrine or prior understandings that would draw the lines between executive and judicial power. So we don't have a lot to go on there. As a result, we have spent two and a quarter centuries trying to figure out a way to draw that line. Nobody to my knowledge has succeeded in doing it. The answer may ultimately lie in something that shows up three years after the Constitution is ratified, and that is some language in the Fifth Amendment talking about how you're not supposed to deprive people of life, liberty, or property without due process of law. If due process of law requires the participation of an actual honest to goodness Article Three judge, then the answer may be that administrative adjudication that deprives people of life, liberty, or property would be problematic. Most administrative adjudication doesn't do any of those things. Most administrative adjudication deals with how the government is going to hand out benefits, hand out Social Security, hand out other forms of welfare. And if those decisions don't deprive people of life, liberty, or property, because you don't have any right to have it in the first place, then it wouldn't be a problem to have all of that done by administrative agencies. But that's all very speculative. This, as I said, is maybe the most complicated question in all of American Constitutional law. Let’s talk more about the difference between Article Three courts and administrative law courts. Apart from their purpose, do they operate the same way? What does it mean to be called a judge? Article three of the Constitution, vests the judicial power in the federal courts. Other parts of the constitution define certain attributes of those federal courts, the two most important are, they have tenure during good behavior, sometimes mistakenly called life-tenure it's tenure during good behavior, they can be impeached and removed for misbehavior. And they also have guarantees against diminishment in salary while in office. Congress doesn't like the way federal courts are deciding cases, can't cut their salaries just to punish them for it. So there are certain baked in features that federal courts have to have. There is an enormous volume of adjudicatory decision making that happens before people who aren't Article Three courts, who don't have either of those, or both of those, constitutional protections. Those include, territorial courts, those in federally held territory. The military justice system, and a great deal of activity by administrative agencies that involves deciding sometimes who gets what benefits, and sometimes who gets million-dollar-a-day fines. So there are plenty of people who act like judges, look like judges, sometimes we even call them judges. Territorial judges, military judges, administrative law judges, but from a constitutional standpoint, they aren't judges. What are they allowed to do? What can't they do? The short answer, is that nobody the hell knows. This is one of the most unsettled, long unsettled, questions in all of constitutional law. It was unsettled two- hundred and twenty-five years ago, it's even more unsettled today. It's probably uncontroversial, that agencies can adjudicate, can apply law to particular facts, when they're dulling out benefits. Right? That's been accepted for a very long time, the more interesting question is whether you can have agency officials dulling out fines and penalties. Depriving people in the language of the fifth amendment, of Life, Liberty, or Property. Are they doing it with due process of law, simply because they hold lots of hearings, put on robes, and act like judges. Or do they actually have to be, honest to goodness, Article Three judges to perform that. Modern doctrine says, to a large extent, the limits of which are, unsettled, that they can do that. Particular there are two cases decided in the middle of the nineteen-eighties that make it very clear that agency officials can adjudicate even the kinds of claims, ordinary contract actions, that normally you would think of would be the stuff of courts. "But!" Says the supreme court, "They can't do too much of that. If they do too much of that, we've got a problem." And indeed there was a time when the federal bankruptcy judges, not real Article Three judges, but we call them that, had enormous authority to enter into decisions of this kind, and in nineteen-eighty-two the supreme court actually said that was a problem. And Congress has had to restructure the federal bankruptcy process so that the orders are actually signed by district judges, by honest to goodness Article Three judges, to make it official. We're still litigating the full contours of those limitations today, so it's not even settled fully today. So suffice it to say this is a question of some importance, to which as of this moment, we do not have a clear crisp answer and there is no prospect, I would say, no prospect at all that you're going to get an answer in the near future. Are there any recent relevant examples of problems or confusion that might be caused by non-Article Three courts? Here's an example of the mess that we're still in, in trying to figure out what kind of adjudicatory functions can be performed by executive officials, even executive officials who call themselves judges, or have to be performed by honest to goodness, real Article Three judges. The Supreme Court decided a case involving a newly created agency called the PTAB. The Patent Trial and Appeal Board. This was part of a statute, the America Invents Act, that was supposed to simplify and stream-line the patent process. In particular, the worry was that there had been a lot of really bad patents, granted by an administrative agency, patent and trademark office, that were out there stifling innovation. Now if there's a bad patent out there, there has always long been legal methods for getting rid of those patents You challenge them in court, or more precisely, you infringe the patent, wait for the person who holds the patent to sue you, and then claim that you can't get sued because their patent is invalid because it never should've issued in the first place. And then you will have an honest to goodness Article Three court deciding the case, ultimately ruling on the validity of the patent. Everybody agrees, that's fine. You can do that. The America Invents Act isn't satisfied with that. It created this patent, trial, and appeal board as an administrative agency, they're called patent judges but they're not Article Three judges, they're administrative officers. And what this body does, is it hears complaints from people about supposedly lousy patents, it looks over the patents that have already been issued and are out there, and decides whether or not to cancel them. So you have an administrative body that's invalidating or canceling patents that have already been issued to someone. Can they do that? Well the Oil States case presented a kind of odd challenge to that process. Went around what I think are the main issues. If you have a civil case in federal court you normally get a jury. So they were claiming that by shifting this into the administrative process, they were being deprived of their right to a jury and the seventh amendment of the Constitutions' guarantees in civil cases, the right to a jury that you had seventeen-ninety-one. So by the time this case gets into the Supreme Court, last year, there's already a fairly settled body of law suggesting this is a real long shot. They're probably not going to win. And they didn't. They lost. Here's the more basic problem with the Patent Trial and Appeal board. It was alluded to in the supreme court decision but not actually argued. What this body is doing is canceling peoples patents. If you think patents are property, the kind of property the fifth amendment is talking about when it says, "don't deprive people of Life, Liberty, or Property without due process of law." Then you have the question of whether you can have an executive body, an executive agent simply making your property disappear without going though the process of an actual honest to goodness trial in an Article Three court. There is probably not a comparable problem with what most of the executive officials, who call themselves judges, are doing. Because most of what those people are doing is adjudicating benefits claims, Social Security benefits, Veterans benefits, federal welfare benefits of various kinds, right? So this, PTAB problem is a nice microcosm of the sorts of issues thar are posed when we have executive officials, not just deciding things, they can decide lots of things, but deciding things that actually dispose of peoples Life, Liberty, or Property. That does actually pose a serious risk of undermining the protections built into the process by Article Three. But as of this moment in time, the case law does not appear to be very receptive to that kind of argument. Thank you for listening to this episode of the No. 86 Lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!