Constitutional Tensions in Agency Adjudication

By Walker, Christopher J. | Iowa Law Review, July 2019 | Go to article overview

Constitutional Tensions in Agency Adjudication


Walker, Christopher J., Iowa Law Review


I. Introduction

Last Term the Supreme Court decided two cases that could potentially shape the constitutional future of agency adjudication. First, in Lucia v. SEC, the Court held that administrative law judges ("ALJ(s) ") at the Securities and Exchange Commission ("SEC") are unconstitutionally appointed because they are, at minimum, inferior "officers of the united States," yet were not appointed by the President, the head of a department, or a federal court as required by Article II.1 Second, in Oil States Energy Services v. Greene's Energy Group, the Court upheld the constitutionality of certain agency adjudications at the U.S. Patent and Trademark Office ("Patent Office") against challenges that they unconstitutionally strip parties of property rights in issued patents.2

The separate opinions issued in these cases illustrate the constitutional tensions in modern agency adjudication. On the one hand, the Court's treatment of the Appointments Clause and related constitutional removal principles in Lucia seems to dictate that agency adjudicators must be appointed and easily removed by the President or department heads in order to provide for sufficient presidential control over federal regulatory activities. One way to frame these appointment and removal concerns is in terms of political accountability: The politically appointed and removable head of the agency must have some form of final decision-making authority. As Justice Thomas, joined by Justice Gorsuch, put it in his Lucia concurrence, "the Appointments Clause maintains clear lines of accountability-encouraging good appointments and giving the public someone to blame for bad ones."3

On the other hand, such political control over agency adjudication that implicates core life, liberty, or property interests potentially raises due process concerns. One concern is that agencies function as both the enforcer and the adjudicator.4 Another is the injection of politics into the adjudication of disputes between private parties and/or those implicating private rights. Insulating agency adjudicators from political influence thus becomes a central objective. Indeed, Congress expressly addressed this issue of adjudicative independence in the Administrative Procedure Act ("APA").5 As an administrative law professors' amicus brief in Lucia underscored, "[o]ne of the core features of the APA was a complicated set of statutory safeguards to assure that the hearing examiners (later renamed ALJs) who were to preside over most agency hearings did not act in ways that reflected bias in favor of the agency that employed them."6

In his Oil States dissent, Justice Gorsuch, joined by Chief Justice Roberts, expressed deep concern about political pressures in agency adjudication (at least in the context of private rights): "Powerful interests are capable of amassing armies of lobbyists and lawyers to influence (and even capture) politically accountable bureaucracies."7 In other words, in the same Term, Justice Gorsuch argued that the Constitution requires agency adjudicators to be hired (and perhaps fired) by the President or agency head (Lucia), yet also decried the constitutional dangers of such politically accountable agency officials adjudicating, at least in the context of what he considers to be the adjudication of private rights (Oil States).

This Essay examines these constitutional tensions in modern agency adjudication. Part II provides an overview of Lucia, Oil States, and related precedents, with a particular focus on Justice Gorsuch's approach in both cases. Taking these expressed constitutional concerns as a given, Part III explores two main ways the Supreme Court (or Congress) could attempt to resolve them: by turning to Article III adjudication or by transforming agency adjudicators into adjuncts of Article III courts. As this Symposium focuses on administering patent law, Part IV returns to the patent adjudication proceedings at issue in Oil States to explore how these constitutional tensions and potential solutions may play out in adjudication at the Patent Office. …

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