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.
In my last post, I discussed the Fourth Amendment, the third party doctrine, and the Carpenter case (which involved information secured from a cell phone company about a consumer’s cell phone location). In that post, I discussed the third party doctrine generally and applied it to Carpenter as an illustration. But Carpenter has an important feature, noted by other bloggers and commenters, that goes beyond the narrow question of the third party doctrine: Congress has passed a statutory provision that protects against the disclosure of information about cell phone customers.
The Carpenter v. United States case, which was argued before the Supreme Court earlier this week, may turn out to be one of the most important Fourth Amendment cases.
In the last year or so, I have discovered that Google Search refuses to recognize some of my posts from this blog. For example, in 2013, I wrote a post for this blog entitled Separating Legislative and Executive Power. If one puts in the title of the post, my last name, and Liberty Law Blog into Google, the post does not come up. By contrast, if one puts those same search terms into the Bing search engine, the post comes up at the top of the list. This is not merely true of this one blog post. It is true of…