Cutting the Gordian Knot: Viewing Legislative Courts Through the Lens of Due Process

Abstract

Legislative courts doctrine has become terribly tangled. When an area of law is summarized as one in which the “precedents are horribly murky, doctrinal confusion abounds, and the constitutional text is by no means clear,” that area of law has become a Gordian Knot. Attempts to untangle will prove futile. For over a century and a half, the Supreme Court has repeatedly tried to make sense of legislative courts, but to no avail. These attempts, ranging from pure formalism to functional balancing tests, have proven detrimental to individual litigants. That is where due process comes in. Despite the fundamental constitutional principles of due process and a neutral adjudicator, the Supreme Court has failed to consider the legislative courts doctrine through this lens. The Supreme Court has provided a robust body of jurisprudence under the Due Process Clause about unacceptable pressures and influences on adjudicators. But no one has thought to introduce the two. So rather than continue to try to untangle legislative courts doctrine, we need to use the sword of due process to cut the knot. This piece aims to begin that conversation.

Keywords: constitutional law, due process, federal courts, federal jurisdiction, legislative courts, separation of powers, administrative law.

JEL Classification: K10, K30, K40, K41