Robert L. Glicksman & Richard E. Levy
90 Geo. Wash. L. Rev. 1088
The Supreme Court has entered a new era of separation of powers formalism. Others have addressed many of the potentially profound consequences of this return to formalism for administrative law. This Article focuses on an aspect of the new formalism that has received less attention—its implications for the constitutionality of administrative adjudication. The Court has not engaged in an extensive discussion or reformulation of its separation of powers jurisprudence concerning administrative adjudication since its highly functionalist decision in Commodity Futures Trading Commission v. Schor more than three decades ago, but recent opinions of individual Justices show signs that such a doctrinal restatement may be on the horizon.
Despite the current lack of doctrinal clarity, administrative adjudication is generally valid under current law either because Congress may vest the determination of so-called “public rights” in non-Article III tribunals or because administrative agencies adjudicate cases as adjunct factfinders for the courts. The foundation for the emergent Article III formalism has been advanced most prominently by Justice Gorsuch in a pair of cases involving the legality of administrative adjudication of patent validity. His approach relies on a categorical rule that Article III requires an independent judiciary to have decisional authority in adjudications that affect private property and other protected rights, in much the same way that the unitary executive principle requires presidential control over matters within the executive branch. Under this view, however, the judicial power is subject to a formalistic, historically defined exception for matters of public rights, which can be adjudicated without the involvement of the judiciary. This approach may be gaining traction as part of the broader resurgence of separation of powers formalism.
Justice Gorsuch’s approach is flawed because it does not account for the structural role of the Article III judiciary. Although the cases have long recognized that Article III has both structural and individual rights components, separation of powers is ordinarily understood primarily in structural terms. Article III analysis therefore must account for the structural role of the courts and protect the structural interests of the federal judiciary. Focusing on structure highlights the importance of the status and character of the non-Article III tribunal for separation of powers analysis and the essential role of judicial review as a means to enforce the rule of law even when an adjudication does not implicate any individual right to an Article III court. This Article argues that most administrative adjudication is fully consistent with separation of powers formalism because the initial implementation of statutory provisions by agencies using quasi-judicial procedures is executive in character. It is the availability and scope of judicial review that determine the extent of any encroachment on the exercise of judicial power under Article III.
