CAN'T SOLVE THE PROBLEM OF THE EXECUTIVE EXERCISING LEGISLATIVE POWER...:

The administrative law debate has for decades been preoccupied (especially on the conservative side) with Chevron's metaphysics and judicial review of rulemaking proceedings. Lately, however, agency adjudication has reemerged as a subject of judicial and scholarly attention, and even of public concern. Our "hidden judiciary"--the 12,000-plus administrative law judges and administrative judges who handle the overwhelming portion of administrative cases--has proven sufficiently arbitrary and capricious of late to grab headlines.

What has brought us to this pass are actions like the imposition of civil fines by bureaucratic edict; sudden changes of agency policy, accomplished by means of adjudication and without fair warning to the parties; the opportunistic shifting of enforcement proceedings from Article III courts to agency tribunals; and the administrative invalidation of invention patents, en masse and including patents that cannot be canceled in any court of the United States. This pattern of conduct is of a piece with bureaucratic practices that deprive citizen of any kind of adjudication--"non-final" enforcement actions that effectively thwart private citizens' business operations or use of their land, or the withholding of permits or licenses unless and until applicants meet extortionate demands.

Such irregularities and abuses aren't lapses. They are the natural and, for the most part, fully intended consequences of  the "appellate review" model that has been the bedrock of American administrative law for well over a century. Under that model, agency adjudication comes first, followed by highly deferential, on-the-record judicial review. It is encapsulated in the Supreme Court's foundational decision in Crowell v. Benson (1932), and it is embodied in the Administrative Procedure Act (APA).

A Time to Be Bold(er)

The appellate review model, I believe, is beyond incremental reform or repair. I propose to decimate and to replace it, over a wide range of governmental action, with a full-scale system of independent administrative courts. Those courts should be endowed with the incentives and the institutional capacity to provide a meaningful check on the regulatory state, and with the capacity to develop, over time, doctrines of administrative law that actually merit that honorific.

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