Wednesday, March 18, 2020

The Executive Power to Adjudicate

By Will Baude - March 18, 2020 at 02:02PM

Article III vests the judicial power of the United States in the federal courts. (Post one.) We nonetheless have state and territorial courts, because they exercise the judicial power of other governments—their respective states and territories. (Post two.) But there is a vast amount of adjudication that takes place in none of these courts—it takes place in administrative agencies, in military courts, or in so-called Article I courts like the "tax court" or "court of federal claims." What is going on with these tribunals?

First of all, none of these tribunals can properly be called courts, in the constitutional sense. None of them can legally exercise the judicial power of the United States, because they were not vested with it in compliance with Article III. And none of them are part of another territorial or membership-based government, like states, territories, tribes, etc., so they can't exercise the judicial power of another government either.

Instead, they all exercise executive power. The military is part of the executive branch. The administrative agencies are part of the executive branch. And so too the so-called "legislative courts," to the extent they are constitutionally permissible, must be part of the executive branch as well.

It is true that these executive agencies do something court-like. They hold hearings, deliberate, and reach and announce decisions. They adjudicate. But adjudication is just a procedure. It doesn't tell you what kind of power they exercise. If the President wanted to hold a telephonic hearing pro and con on whether to issue a pardon, the ultimate decision would still be an exercise of executive power.

But there is an important limit to executive power, something that is not true of judicial power. Traditionally, executive power generally could not result in the lawful deprivation of life, liberty, or property. To confiscate somebody's rightly-earned money, to put a free person in prison, to execute a suspected murderer all require the exercise of judicial review.

That is why traditionally executive adjudication was limited to so-called public rights or privileges. An agency could decide on its own whether to grant a license, issue a land grant, etc., because those decisions did not deprive anybody of life, liberty, or property. Similarly, the United States was protected against suits by sovereign immunity, so its decision whether to pay any claims against the United States was effectively a matter of grace, a privilege.

Now two things complicate this picture. (Again, you can read the article for gruesome detail, and for even more complications.) One is that administrative agencies today do many things that would be called a deprivation of property or liberty under modern doctrine; if we wanted to adhere to the original requirements of Article III, we might need to narrow the definitions of property and liberty or else to move some of their functions to Article III courts.

The other is that military tribunals have always issued adjudications that resulted in imprisonment or even death. But military adjudication is itself recognized by the text of the Constitution and it has a Founding-era pedigree. So we might justify it by saying that enlisting in the military temporarily forfeits your right to liberty and life, or else by simply saying that it is a traditional exception to the traditional due process requirement. Either way, though, military tribunals are not part of the judicial branch, they part of the executive branch, ultimately overseen by the Commander in Chief. That has some important implications I'll discuss tomorrow.


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