Neither Fish Nor Fowl: Administrative Judges in the Modern Administrative State

This article examines the role of administrative adjudication in the United States constitutional system. It begins by noting that such adjudication fits uncomfortably within a system of divided powers. Administrative judges, including administrative law judges [ALJs] (who have the highest level of protection and status), are considerably more circumscribed than ordinary Article III judges. Indeed, administrative judges are usually housed in the agencies for which they decide cases, rather than in independent adjudicative bodies, and they do not always have the final say regarding the cases they decide. In many instances, the agency can appeal an adverse administrative judge\u27s decision directly to the head of the agency, and the agency head retains broad power to overrule the administrative judge\u27s determinations. In other words, the agency can substitute its judgment for that of the administrative judge regarding factual determinations, legal determinations, and policy choices. As a result, many administrative adjudicative structures involve difficult tradeoffs between independence, political control, and accountability. This article examines issues related to the status and power of administrative judges, as well as the constraints that have been imposed on administrative adjudicative authority, and explores whether those constraints continue to serve the purposes for which they were originally imposed

Parents Know Best: Revising Our Approach to Parental Custody Agreements

Historically, parents have not been able to determine custody of their children prior to marriage in the form of a prenuptial agreement. Although parents are able to enter into such agreements, courts normally have a great deal of latitude in ignoring these agreements. A majority of states merely consider the agreement as one factor in determining what is in the child\u27s best interest, while the majority of the rest presume the agreement is in the best interest of the child unless the judge finds otherwise. Only two states defer to the parental agreement unless it would be harmful to the child. This Article maintains that this \u27parental deference standard is the best of the three standards for three reasons. First, this standard would lead to better decision-making because it would remove the decision from the hands of judges. Second, this standard would significantly improve the child-custody process. Third, this standard best respects the parents\u27 fundamental right to make parenting decisions for their children

The Impact of the Rise and Fall of Chevron on the Executive\u27s Power to Make and Interpret Law

The Supreme Court\u27s willingness to defer to agency interpretations of ambiguous statutes has vacillated over the past seventy years. The Court\u27s vacillation has dramatically impacted the executive \u27s power to make and interpret law. This Article examines how the Court augmented then constricted executive lawmaking power and ceded then reclaimed executive interpretive power with a single case and its legal progeny. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and its aftermath dramatically altered the executive\u27s power to make and interpret law. Prior to Chevron, Congress had the primary responsibility for lawmaking, while agencies made policy choices primarily when Congress explicitly delegated that power to them. Also, prior to Chevron, the judiciary resolved questions of statutory interpretation of regulatory statutes with a bifurcated approach: agencies did not receive deference when they resolved issues involving pure questions of law, but did receive some level of deference when they resolved issues involving questions of law application. In short, prior to Chevron, the executive was an expert advisor, not a law-maker or law interpreter. With its holding in Chevron, the Court dramatically, and likely unintentionally, altered executive lawmaking and interpretive power. Specifically, executive power burgeoned. The sphere of legitimate agency lawmaking expanded because of the adoption of implicit delegation as a legitimate legislative mandate. The sphere of legitimate agency interpretation also expanded because the Court replaced its bifurcated deference approach with its now familiar two-step approach, under which the Court retained interpretive power at step one, but ceded interpretive power at step two. In summary, with Chevron the executive moved from expert advisor to quasi-law maker and quasi-law interpreter. But this transition was short-lived. Today, the Court is reclaiming the power it both surrendered and transferred with Chevron. With two important changes to Chevron\u27s application-restricting the types of agency interpretations entitled to deference and curbing the implied delegation rationale-the Court has begun to reclaim the interpretive power it ceded and the lawmaking power it shifted with the rise and fall of Chevron. Simply put, the Court has come full circle by expanding executive power and then dramatically contracting it

Which is to Be Master, the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers

Statutory interpretation is at the cutting edge of legal scholarship and, now, legislative activity. As legislatures have increasingly begun to perceive judges as activist meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation. Legislatures are constitutionally empowered to draft statutes. In doing so, legislatures expect to control the meaning of the words they choose. Moreover, they prefer to do so early in the process, not after a judge has interpreted the statute in a way they did not expect or intend. Judges are constitutionally empowered to interpret statutes without legislative micromanagement. The question, then, is how to balance these valid, but competing, constitutional roles. This Article explores when statutory directives disrupt this balance and violate separation of powers. The Article concludes that when the legislature tries to control the process of interpretation, as opposed to trying to influence the outcome of interpretation to promote specific policy objectives, the legislature aggrandizes itself, oversteps constitutional boundaries, impermissibly intrudes into the judicial sphere, and becomes master of the interpretive process

The Shadow of Free Enterprise: The Unconstitutionality of the Securities & Exchange Commission\u27s Administrative Law Judges

Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC\u27s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, the SEC realized a significant home-court advantage. For example, in 2014, the SEC\u27s enforcement division prevailed in 100% of its administrative proceedings, while it prevailed in only 61% of the cases it brought in federal court. With these statistics, it is no surprise that potential respondents to SEC enforcement actions soon challenged the constitutionality of the SEC\u27s new choice. In this Article, we explain why the SEC ALJs\u27 appointment and removal processes violate the United States Constitution. The SEC ALJs are inferior officers of the United States. As such, they must be appointed by the President, a court of law, or the head of a department. Instead, they are appointed by the head SEC ALJ. Additionally, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court held that dual for-cause removal provisions violate separation of powers because such clauses prevent the President from faithfully executing the law. The SEC ALJs are subject to multiple for-cause removal protections. Possibly, the Supreme Court will refuse to extend its holding in Free Enterprise - that multiple levels of tenure protection violate separation of powers - to ALJs. However, if the Court meant what it said and if the case is to have any relevance beyond the agency involved in that case, then the multiple for-cause removal provisions affecting the SEC ALJs specifically, and all ALJs generally, will need to be reconsidered

The SEC\u27s Fight to Stop District Courts from Declaring Its Hearings Unconstiutional

Can the Securities and Exchange Commission (SEC) unilaterally deny a United States citizen the right to challenge the constitutionality of the agency\u27s administrative hearings in district court? The SEC thinks so, but it makes no sense for these constitutional challenges to be brought in the very proceeding that allegedly, and likely, violates the U.S. Constitution. The appellate courts mostly agreed with the SEC, until recently when the Fifth Circuit held that the district courts should hear these claims. Given this circuit split, this issue will soon reach the Supreme Court, making this Article extremely timely. The Securities Exchange Act of 1934 authorized the SEC to regulate securities. More recently, Congress amended that act to give the SEC the ability to bring enforcement cases either in federal court before an Article III judge or in its in-house forum before an SEC Administrative Law Judge (ALJ). After numerous losses in federal court, the SEC moved in-house and did so aggressively. As the SEC used adjudication more frequently, entities on the receiving end of an enforcement action challenged the constitutionality of the inhouse process. They sued in federal district courts around the nation, raising a variety of constitutional claims, including unlawful delegation, violation of equal protection and due process, interference with the right to a jury trial, and unconstitutional appointment and removal of SEC ALJs. In response, the SEC argued that federal courts lacked subject matter jurisdiction to hear the claims, citing the doctrine of implied preclusion. The SEC argued that its decision to bring an in-house adjudication against an entity forecloses the federal district courts from hearing any challenges to the SEC\u27s process, including constitutional challenges. The claims can be heard only on appeal of the agency\u27s decision. In short, plaintiffs must endure the very harm they claim is unconstitutional before the issue can be heard in an Article III court. Not surprisingly, plaintiffs counter that they should not have to endure an unconstitutional proceeding before being able to raise their claim that the process is unconstitutional, especially given that no adequate remedy can be provided. You can\u27t unscramble an egg! Resolution of this issue is important because it addresses a fundamental question: who should resolve challenges regarding an agency\u27s constitutionality, the federal courts or the adjudicating agency? Importantly, the SEC is not the only agency mounting this fight. Other agencies are also using the implied preclusion doctrine to prevent district courts from adjudicating their constitutionality. This Article explains the implied preclusion doctrine and why the agencies are wrong. Federal courts should determine whether the agencies\u27 adjudicatory processes violate the Constitution, not the agencies themselves