Any serious checks on the separation of parties and executive government, I’ve argued in my earlier post, would compel us to re-think big pieces of the constitutional and institutional architecture—stuff we haven’t thought about and that’s wholly missing from the GOP’s pedestrian “Better Way” agenda. Herewith some examples of what that might look like. Here’s an option that ABW stumbles toward: under the German Constitution, one-third of the legislature can ask for immediate constitutional review of any piece of legislation. Why? Because Germany doesn’t have a separation of powers that permits one political branch to check the other’s transgression. It’s a…
Earlier this week the Supreme Court heard oral argument in Mach Mining LLC v. Equal Employment Opportunity Commission (transcript and briefs). It’s a fairly big deal for employers, and another small window in the administration’s quaint views of administrative law.
The case concerns the EEOC’s enforcement practices. After the agency files a notice against an employer, conducts its investigation, and finds “reasonable cause” to proceed, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. 20002-5(b). What happens if they don’t do that prior to filing suit, or do a snow job on the employer? Nothing, says EEOC. The provision is unreviewable.
Michael Greve’s earlier post on Administrative Law has inspired me to write a couple of posts about the subject.
One of the key issues in Administrative Law is that administrative agencies do not conform to the separation of powers. In a meaningful sense, agencies possess legislative, executive, and judicial power, which makes them a separation of powers monstrosity.
In this post, I will discuss an aspect of this problem: the combining of prosecutorial and adjudicative functions in the agency.
Prosecuting and adjudicating seems like an obvious violation not merely of the separation of powers but also of the rule of law. It has long been recognized that a man should not be a judge in his own case, and allowing administrative agencies to adjudicate their own prosecutions does exactly that. As a result, agencies may not faithfully follow the existing law, but instead bias the adjudication towards their own interests.
The Administrative Procedure Act, passed in 1946 to impose some constraints on agencies, established some checks on an agency’s power to adjudicate its own cases. In cases involving formal adjudication – those adjudications that are subject to the strongest procedural checks – the agency adjudicator (typically an administrative law judge or ALJ) cannot be supervised by an agency official who prosecutes. This is a significant check, and is all for the good.
More and more frequently (I’d heard or read someplace) federal agencies issue regulations without public notice and comment. They may do so (1) when Congress has required or authorized the procedure or (2) the rule falls under one of the Administrative Procedure Act’s exemptions from generally applicable (informal) rulemaking requirements. Among them is an alarmingly broad “good cause” exemption, which permits the suspension of ordinary process requirements “when the agency for good cause finds […] that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” APA Sec. 553(b)(3)(B). (There are a few legal wrinkles, but none are relevant here.) Adrian Vermeule has tagged this provision as one of many legal “grey holes” that swallow the rule of law. That sounds plausible: Notice and comment is the legal process we impose on agencies as the price of delegated lawmaking authority. The good cause exemption looks like (and has been widely understood as) as “emergency” exemption. In times of crisis, government will take liberties with it and courts will “dial down” their review.
Is that happening? I wouldn’t dignify my preliminary inquiries to date with the word “research,” but a quick look suggests a pattern that’s quite at odds with my expectations and with the picture of a “Schmittian” emergency state.