Arguments related to agency interaction with the constitutional order
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Agency dynamics is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Agency dynamics is a term used to refer to the structure and function of administrative agencies. While the majority of agencies are housed under the executive branch, others are established as independent federal agencies or are housed under the legislative or judicial branches. These structural variations impact agency oversight as well as agency interactions across branches. This pillar also involves understanding the nuts and bolts of agency functions, including rulemaking and adjudication proceedings.
This page examines the main arguments that have been advanced regarding agency interaction with the constitutional order. While some arguments support the constitutionality of agency dynamics, others contend that agency dynamics create tension with constitutional principles.
This page features two main arguments concerning agency interaction with the constitutional order:
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Agency adjudication violates the separation of powers
2. Argument: Agency adjudication does not violate the separation of powers
- Claim: The combination of functions within agencies does not create an unconstitutional risk of bias
Argument: Agency adjudication violates the separation of powers
Current agency adjudication procedures, according to this argument, violate the Constitution's separation of powers provisions. This argument contends that agency adjudication violates the separation of powers by unlawfully transferring judicial power from the judicial branch to the executive branch and independent agencies.
Claim: Adjudication transfers judicial power to the executive
This claim suggests that the Constitution does not grant the executive branch the power to investigate with the force of law, or adjudicate. The Constitution grants that power instead to the judicial branch.
- Administrative law scholar Philip Hamburger argued in his 2014 book Is Administrative Law Unlawful? that agencies should not be allowed to issue orders and warrants. Instead, agencies should be required to act through courts and judges in order to issue binding orders: “[T]he executive has the power to investigate, but the executive does not have the power to investigate with the force of law. Orders or warrants binding subjects (whether individuals or corporations) are part of the judicial power. Therefore when the executive seeks to bind persons to give information, it traditionally must act through the courts and their judges, and when it seeks to bind subjects to give information in the absence of an accusation in court, it must act through a court’s grand jury.” /paragraph break/ “The administrative power to force disclosure thus evades the requirement of a grand jury. It returns to what the Supreme Court itself calls a “power of inquisition”—the power by which prerogative or administrative bodies act outside the courts to force subjects to disclose information. The executive thereby revives inquisitorial process in place of due process, and more generally exercises a power of ordering persons that the Constitution gives to the courts.”[1]
Argument: Agency adjudication does not violate the separation of powers
Adjudication procedures, according to this argument, function in accordance with the separation of powers. Since Congress deemed agency adjudication acceptable in the Administrative Procedure Act (APA), supporters of this argument claim that the resulting combination of functions within agencies is not unconstitutional.
Claim: The combination of functions within agencies does not create an unconstitutional risk of bias
This claim suggests that Congress permitted agencies to perform adjudication as part of the APA. Therefore, according to this claim, the resulting combination of functions does not pose an unconstitutional risk of bias in violation of due process.
- In the paper "Due Process, Free Expression, and the Administrative State," administrative law scholars Martin Redish and Kristin McCall summarized the U.S. Supreme Court's holding in the 1975 case Withrow v. Larkin that the combination of functions within agencies compounded by agency adjudication does not violate due process: "The [Supreme] Court held that 'the combination of investigative and adjudicative functions does not, without more, constitute a due process violation.' According to the Court, due process is violated when 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.' The Court stated that this combination of functions does not necessarily create an unconstitutional risk of bias. The Court pointed to the variety of functions the members of administrative agencies are often called upon to perform, including 'to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the ensuing hearings.' The Court found that '[t]his mode of procedure does not violate the Administrative Procedure Act, and it does not violate due process of law.' The Court reasoned that: The risk of bias or prejudgment in this sequence of functions has not been considered to be intolerably high or to raise a sufficiently great possibility that the adjudicators would be so psychologically wedded to their complaints that they would consciously or unconsciously avoid the appearance of having erred or changed position. In support of its conclusion, the Court noted that Congress had already dealt with the issue of combining investigative and adjudicatory powers through the APA, seemingly implying that Congress had deemed this overlap of powers permissible. The APA provides that no employee who investigates or prosecutes may participate or provide advice in the adjudicatory process; though, as noted previously, the APA expressly exempts 'the agency or a member or members of the body comprising the agency' from this prohibition. The exemption allows the Commissioners to engage in the investigation, prosecution, and adjudication of claims. The Court failed to address how the Commissioners’ direct role in all three processes might be impacted by due process, though the opinion implies that this is permissible."[2]
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Footnotes
- ↑ Hamburger, P. (2015). Is Administrative Law Unlawful? Chicago: University of Chicago Press.
- ↑ Northwestern Public Law Research Paper No. 18-03, "Due Process, Free Expression, and the Administrative State," 2018
