In a recent post, I discussed the fact that administrative agencies combine prosecutorial (executive) and judicial power, with the result that agencies are judges in their own cases. In this post, I want to propose a solution to the problem.
One way to avoid the combination of executive and judicial power is to have two different entities decide these matters. Interestingly, this actually exists in an agency — the National Labor Relations Board. The Board adjudicates cases under the National Labor Relations Act. The General Counsel of the agency, who is independent of the Board, makes the prosecutorial decisions. Thus, executive and judicial power are separated.
But there is another way of separating executive and judicial powers that would require a more significant change in agencies. One could employ Article III administrative courts instead of Administrative Law Judges (ALJs) to adjudicate. Article III administrative judges would have life tenure like other Article III judges. They would also not engage in any prosecutorial functions nor would they be supervised by officers who did.