Constitutionally Conforming Agency Adjudication

In June 2017 the D.C. Circuit issued a judgment that essentially reaffirms the constitutionality of current appointments procedures for administrative law judges (ALJs) in the Securities and Exchange Commission (SEC). After conducting an en banc hearing in the case, the en banc court split evenly over whether the ALJs are “Officers of the United States” subject to the constitutional requirement of appointment by the president, a department head, or a court of law. The evenly divided vote resulted in the affirmance of the D.C. Circuit’s earlier panel decision finding that the ALJs are not “officers”—continuing the court’s split with the Tenth Circuit, which has concluded the ALJs are “officers.” The continued split and the en banc posture of the case mean this issue may receive consideration by the Supreme Court. This essay responds to a widely cited article by Professor Kent Barnett that suggested ALJs should be appointed by neither the President or an agency head, even if the courts eventually conclude they are “officers.” In particular, Professor Barnett contends that executive branch appointment of agency adjudicators creates such a significant threat to ALJ impartiality that due process considerations may require a court of law such as the D.C. Circuit—rather than the executive branch—to appoint ALJs. This essay refutes those concerns. Tying together legal scholarship on due process and the Appointments Clause, this essay contends: The Article II clause that vests executive power in the President, as well as the text and drafting history of the Appointments Clause, together mandate that agency adjudicators must be appointed by executive branch actors—not by courts of law. As long as these adjudicators handle issues properly resolved through executive adjudication as a historical matter, there are no constitutional partiality concerns with the executive branch appointment—or even removal—of agency adjudicators. Rather, the transparency protections of the Appointments Clause provide the appropriate constitutional mechanism for accountability in executive adjudication

Limitations on the First Amendment Right of Access to Information Controlled by the Government

Flynt v. Rumsfeld addressed the issue of whether members of the media have a First Amendment right to accompany United States troops into combat. This issue arose when the Department of Defense ( DOD ) declined the request of Larry Flynt of Hustler magazine to embed one of his reporters with ground troops in Afghanistan in October 2001. Flynt claimed that the DOD\u27s denial of his request violated an alleged First Amendment right of access to government information. The case came before the United States District Court for the District of Columbia as the result of a motion for dismissal filed by the defendant, Secretary of Defense Donald Rumsfeld, and the D.C. Circuit affirmed the district court\u27s dismissal of Flynt\u27s claim

Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine

This short reflections essay is an invited piece that addresses the Supreme Court\u27s consideration of the nondelegation doctrine this coming Term in Gundy v. United States. The Court has not found any statutory provision to be unconstitutional on nondelegation grounds since 1935. Will that change this Term when the Court evaluates the Attorney General\u27s authority to retroactively apply federal sex offender registration requirements to individuals convicted prior to enactment of those statutory rules? Will the new makeup of the Court after Justice Kennedy\u27s retirement impact the likely outcome of this nondelegation challenge

“Officers” in the Supreme Court: Lucia v. SEC

This article appeared in the Cato Supreme Court Review addressing the Court\u27s October Term 2017. The article addresses the Court\u27s June 2018 opinion in Lucia v. SEC, which held that administrative law judges in the Securities and Exchange Commission are Officers of the United States within the meaning of the Constitution\u27s Appointments Clause. Significant portions of this article are based on my earlier study of the original meaning of the Appointments Clause that the Stanford Law Review published in February 2018, see 73 Stan. L. Rev. 443 (2018)

Early Customs Laws and Delegation

Last Term the Supreme Court reexamined the nondelegation doctrine, with several justices concluding that in the proper case, the Court should consider significantly strengthening the doctrine in its contemporary form. Adherents to the doctrine question whether Congress has developed a practice of improperly delegating to administrative agencies the legislative power that Congress alone must exercise under the Vesting Clause of Article I of the Constitution. Many scholars have debated the extent of the historical or textual basis for the doctrine. Instead, this Article examines interactions between executive and legislative actors during the first congressional debates on the Impost, Tonnage, Registration, and Collection of Duties Acts. In addition to revealing Congress’s central role early on, this story shows the relevance of state and congressional district interests to the legislative agreements concerning customs laws. The rich depth of these varied interests suggests that nondelegation limitations might not be inherent in the Vesting Clause alone, but may be innate to the federal government’s tripartite and federalist structural design itself.The Constitution carefully provided significant protection for state interests through diverse representation schemes in the House and the Senate. Beyond the textual limitation of exclusive vesting of the legislative power in Congress, separation of powers principles help ensure all people’s interests are represented in a way that would not be possible via a singular, centralized administrative entity. The acts of such administrative entities are accountable, if at all, to just one centralized elected official, not to multiple elected decisionmakers representing states and regional interests. Consequently, enforcement of relatively strict nondelegation principles may be critical to preserving the structural constitutional principle that the federal government must reflect the interests of both individual members of the electorate as well as the states and regional electoral districts

Private Delegation Beyond Executive Supervision

Over the past decade, the Supreme Court has reworked the landscape of executive branch supervision. The Court has both addressed the scope of executive officials subject to the Constitution’s selection constraints in the Appointments Clause and imposed limits on the tenure protections that Congress can bestow on senior agency officials. This refashioning retrenched the functionalist approach that had taken hold in the twentieth century and culminated in the Court’s 1989 blessing of independent counsels with authority to investigate the Executive Branch from within.One less-explored question is the degree to which federally prescribed tasks can be carried out by individuals other than government officials. In other words, to what extent can Congress authorize private actors to perform statutorily required components of governmental operations such as arbitration of disputes, creation of standards tied to governmental requirements, fact-gathering, or the performance of evaluations where the result leads to qualification or disqualification for a government service or benefit? Justice Alito raised this key question in a 2015 dispute involving Amtrak, when he questioned the constitutional basis for Amtrak to set metrics and standards governing passenger railroad services operating as a private actor. The question continues to plague government practice, as Congress at times prefers to employ private boards or commissions to set standards such as the quantity and type of routine pediatric services that health insurers must cover under the Affordable Care Act.From the time of the establishment of the first Congress in 1789, the federal government has employed private actors for numerous tasks. Many of those responsibilities, however, involved the provision of contractual services such as measuring the quantities of imported goods, valuing imported items, constructing government buildings, or providing expertise such as autopsy analysis. In modern practice, private boards or arbitration panels have at times made decisions that ultimately bind the rights or obligations of private parties or that establish the substantive content for government mandates. Is there a meaningful, constitutional distinction between the early versus modern acts? What was the understanding at the time of early practice of the limits, if any, that should govern the types of tasks Congress assigned to private actors? Does the non-officer status of private actors free them from constitutional appointments and oaths constraints? Or is there an irreducible minimum of core governmental authority that cannot be delegated to private actors and that must instead be exercised by governmental actors subject to the Constitution’s oath and appointments accountability mechanisms?This Article will unpack some of those constitutional complexities by examining the early federal practice of delegating adjudicative patent determinations to private experts, which the Supreme Court briefly considered in its most recent review of executive direction of governmental determinations. Specifically, the position of the patent commissioner, first created by Congress in 1836, was bound by fact-findings of private expert panels when denying patent applications. The Court implicitly suggested last year, in United States v. Arthrex, 141 S. Ct. 1970, 1988 (2021), that this practice did not undermine the modern presidential supervisory structure that the Court went on to mandate for the contemporary patent office because the 1836 panels consisted of just private experts, not officers.What implications, if any, does such a view hold for the scope of power or duties that private actors can exercise outside of the control or supervision of the Constitution, the President, and any constitutional accountability mechanisms purportedly constraining power? Just three years after the 1836 boards’ creation, Congress went on to eliminate them and transfer their duties to a federal judge. But evidence suggests that policy considerations rather than constitutional concerns drove this development.Although Congress and implicitly the Court apparently have concluded that the binding fact-finding authority of the early boards did not disrupt presidential executive supervision, the evidence suggests that this superficially significant power really was not viewed as constituting core sovereign authority. The Executive Branch today has signed off on far broader private delegation of a potentially constitutionally distinct character. This Article will uncover some of those distinctions and explore how the early view of permissible private delegation, implicitly endorsed by the Supreme Court in 2021, differs substantially from some of the private arbitration and other binding private power that Congress and the Executive Branch have normalized today. The constitutional concerns over too much private delegation raised by jurists such as Justice Alito merit further exploration and may call into question several current governmental practices

The Dictionary as a Specialized Corpus

Scholars consider reliance on dictionary definitions to be the antithesis of objective, big-data analysis of ordinary meaning. This Article contests that notion, arguing that when dictionaries are treated as a specialized database, or corpus, they provide invaluable textured understanding of a term. Words appear in dictionaries both as terms being defined and as terms defining other words. Examination of every reference to a contested term throughout a dictionary’s definitional entries of other words may substantially benefit statutory and constitutional interpretation. Because dictionaries catalog language, their use as a specialized corpus provides invaluable insight into the ways a particular word is used in relation to terms throughout the English language. Such evidence provides a crucial interpretive launchpad, even for corpus-based researchers looking for a collection of possible word meanings to analyze in a database of ordinary-language documents

Federal Officer Suits by Common Law

This term, the U.S. Supreme Court all but nailed the door shut on one of the modern era’s last remaining vehicles for monetary damages to heap accountability on bad-acting federal officials. In a 5-1-3 decision, the Court rejected the extension of Bivens relief to retaliation and assault claims stemming from a border confrontation.This may trouble individuals concerned with history. Founding-era evidence suggests that damages suits against federal officers provided an important complement to impeachment as an accountability mechanism outside the hierarchical structure of executive branch direction and command. As scholarship has previously explained, for many decades after the ratification of the U.S. Constitution federal officers faced common-law claims for damages when allegedly engaged in unlawful acts. These common-law suits existed long before Congress established statutory general federal question jurisdiction in 1875. And whereas Congress enacted 42 U.S.C. § 1983 to authorize monetary damages for constitutional violations under color of state law, Congress has enacted no companion act authorizing damages suits for federal officer constitutional violations.The Court attempted to bring its pragmatic vision of equity to this state/federal asymmetry in 1971 when it held in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that the text of the Constitution contains an implicit right to monetary damages in the event of a federal violation of individual rights. The pressure on this form of relief intensified in 1988 when Congress enacted the Westfall Act, removing the availability of state common-law remedies for actions by federal officials other than claims alleging constitutional violations. But in the years following Bivens, the Court has repeatedly reconsidered its contours, rejecting a Bivens claim for the 12th time in 40 years this term in Egbert. After Egbert, policymakers and theorists who believe that there is either a constitutional or good governance mandate to ensure that bad federal actors face individual monetary liability must turn to Congress (or to the courts, perhaps less ideally) to revisit the severity of the Westfall Act. Or they must look for other state-law or statutory-driven solutions.This article delves into the historical role of monetary suits against federal officers to explain how such suits differed structurally in a constitutionally meaningful way from the suits that Bivens authorized, unpacking the separation-of-powers implications of the Court’s rejection of federal judicial creation of damages relief. The Court’s decision in Egbert stands as a retrenchment of 20th-century claims of judicial authority to apply the law as the Court sees fit. As such, the ruling in Egbert ties into the central theme of the 2021-22 Supreme Court Term—which actor has the power to decide. Egbert reaffirmed the scope of congressional authority to decide the contours of federal liability and recovery in federal courts and puts squarely on Congress the future question of whether and to what degree monetary damages recovery must be available against individual federal officials for unconstitutional acts

Executive Decisions After Arthrex

Decisionmaking in the modern executive branch frequently rests on a convenient formalism. Ultimate power is typically vested in high-level “principal” officers who, under the Appointments Clause, must be appointed by the President with the advice and consent of the Senate. The vast bulk of day-to-day decisions within the branch, however, are made by thousands of lower-level officials who are either “inferior” officers appointed under the Appointments Clause or mere employees lacking any official appointment under modern doctrine. United States v. Arthrex marks out a constitutional limit to this modern allocation of power. Whatever de facto power lower-level officials possess as a matter of practice, the Court held in Arthrex that Congress cannot vest final decisional authority in subordinate civil servants not appointed by the President with the advice and consent of the Senate.Arthrex is significant for at least three reasons. First, the Supreme Court has now, for the first time in its modern separation of powers jurisprudence, relied on a combination of the Appointments Clause and Article II’s Executive Vesting Clause to invalidate statutory law not because of the tenure protections afforded to officers, but because of the distribution of decisional power between principal officers and lower-level officials. That new focus on the distribution of power leads to a second major implication of the case: The decisions of hundreds of inferior officers, such as administrative patent judges, must be subject to the review of a principal officer, but many questions remain to be answered about the exact scope and content of that review. Some of those issues are already being raised in litigation. Third, Arthrex deepens the tension between the Court’s recent separation-of-powers cases and its older precedent Morrison v. Olson. The Arthrex Court conspicuously avoided citing Morrison, but it did carefully limit its holding to “the context of adjudication.” That curious limitation leaves the law currently (though perhaps only temporarily) in a deeply untraditional place, with principal officer supervision over inferior officers required for some executive branch adjudicative decisions but not required for some core executive decisions such as whom to investigate and prosecute