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Agency Adjudication: What Power Is Invested in These Courts?

Professor Gary Lawson explains that administrative agency courts have been around for as long as agencies have existed. Their role in determining and granting benefits is uncontroversial. However, what happens if these courts start administering fines and revoking property rights? Can this only be done by a true Article III court? Professor Lawson discusses the recent example of the Patent, Trial and Appeal Board, staffed by administrative officers. https://youtube.com/watch?v=Ec-7ge4qc_4


It's probably uncontroversial, that agencies can adjudicate, can apply law to particular facts, when they're doling out benefits. 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. 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? Just last year, 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 steam-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. The America Invents Act 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? 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 through 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 that 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.

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