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The Legitimacy of Agency Adjudication:The Most Complicated Question in Constitutional Law

Is there a Constitutional problem with the existence of administrative, non Article Three judges? Professor Gary Lawson posits that this is an unresolved issue which potentially has no clear resolution. Before the American Constitution was written, the judicial and executive powers were both held by the King. What the judicial “power” consists of was a difficult question for the Founders and continues to be a contentious question for scholars today. https://youtube.com/watch?v=iZ4vRvv4G2M


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.

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