Replacing Agency Adjudication with Independent Administrative Courts

Abstract

Modern administrative agencies conflict with a strong separation of powers, exercising not only executive power, but also delegated legislative and judicial power. This feature of modern agencies raises serious legitimacy concerns, because the separation of powers is one of the traditional means to constrain government power and deter improper government behavior. Defenders of the administrative state often argue, however, that these legitimacy concerns must be borne because modern government would not otherwise possess the expertise or efficient decision making capacity that such government requires to function.

This Article, published as part of a symposium on administrative adjudication, argues that there is an alternative way of structuring administrative adjudication that would allow for both a strong separation of powers and efficient decision-making. I argue for a system of genuinely independent courts that have expertise and that use the streamlined procedures of agency adjudication. The judges of these courts might be either Article III or Article I judges and would be required to have expertise in either economics, medicine, or science. Such courts would serve to promote the limited and effective government of the separation of powers while also furthering the expert and expeditious decision-making of agency adjudication.

The system would avoid the basic unfairness and bad results of having the prosecutor be the judge in his or her own case. It would also reduce the opportunity for agencies to take a host of other actions that are currently allowed, such as pursuing extreme ideologies not shared by the public or promoting the interests of a political party. But a system of independent administrative courts would not require that regulatory laws be administered by uninformed officials or through expensive and time-consuming procedures. One could employ expertise and streamlined procedures to allow for knowledgeable and low-cost decision-making.

Keywords: administrative adjudication, separation of powers, Article III judges, Article I judges,

JEL Classification: K10, K19, K23,