In two prior posts (here and here), I have been discussing the ideas in my new paper, “Classical Liberal Administrative Law in a Progressive World.” This post continues the series by discussing how agency adjudication should be changed.
Under current arrangements, agencies often adjudicate cases that really should be adjudicated in Article III courts. Most of the time, these adjudications are called formal adjudications since they are accompanied by a formal hearing that provides significant procedural protections. The initial decision is made by an administrative law judge (ALJ) but, if the agency does not agree with the ALJ’s decision, the agency can appeal that decision to itself and reverse the ALJ. Thus, agency adjudications are ultimately controlled by the agency.
One of the main ways that administrative agencies exercise non-executive power is through their extensive rulemaking authority. Agencies exercise quasi-legislative (or simply legislative) power by enacting rules on the basis of often vague statutory requirements, such as “promoting the public.” The best solution to this issue would probably have Congress pass the rules that govern the public rather than leaving the decision to agencies. But Congress likely does not have the expertise to write these rules or the time to enact them.