Federal Courts

The Executive Power to Adjudicate

Adjudication Outside Article III (part three)

|The Volokh Conspiracy |

Article III vests the judicial power of the United States in the federal courts. (Post one.) We nonetheless have state and territorial courts, because they exercise the judicial power of other governments—their respective states and territories. (Post two.) But there is a vast amount of adjudication that takes place in none of these courts—it takes place in administrative agencies, in military courts, or in so-called Article I courts like the "tax court" or "court of federal claims." What is going on with these tribunals?

First of all, none of these tribunals can properly be called courts, in the constitutional sense. None of them can legally exercise the judicial power of the United States, because they were not vested with it in compliance with Article III. And none of them are part of another territorial or membership-based government, like states, territories, tribes, etc., so they can't exercise the judicial power of another government either.

Instead, they all exercise executive power. The military is part of the executive branch. The administrative agencies are part of the executive branch. And so too the so-called "legislative courts," to the extent they are constitutionally permissible, must be part of the executive branch as well.

It is true that these executive agencies do something court-like. They hold hearings, deliberate, and reach and announce decisions. They adjudicate. But adjudication is just a procedure. It doesn't tell you what kind of power they exercise. If the President wanted to hold a telephonic hearing pro and con on whether to issue a pardon, the ultimate decision would still be an exercise of executive power.

But there is an important limit to executive power, something that is not true of judicial power. Traditionally, executive power generally could not result in the lawful deprivation of life, liberty, or property. To confiscate somebody's rightly-earned money, to put a free person in prison, to execute a suspected murderer all require the exercise of judicial review.

That is why traditionally executive adjudication was limited to so-called public rights or privileges. An agency could decide on its own whether to grant a license, issue a land grant, etc., because those decisions did not deprive anybody of life, liberty, or property. Similarly, the United States was protected against suits by sovereign immunity, so its decision whether to pay any claims against the United States was effectively a matter of grace, a privilege.

Now two things complicate this picture. (Again, you can read the article for gruesome detail, and for even more complications.) One is that administrative agencies today do many things that would be called a deprivation of property or liberty under modern doctrine; if we wanted to adhere to the original requirements of Article III, we might need to narrow the definitions of property and liberty or else to move some of their functions to Article III courts.

The other is that military tribunals have always issued adjudications that resulted in imprisonment or even death. But military adjudication is itself recognized by the text of the Constitution and it has a Founding-era pedigree. So we might justify it by saying that enlisting in the military temporarily forfeits your right to liberty and life, or else by simply saying that it is a traditional exception to the traditional due process requirement. Either way, though, military tribunals are not part of the judicial branch, they part of the executive branch, ultimately overseen by the Commander in Chief. That has some important implications I'll discuss tomorrow.

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  1. And some people say the Constitution cannot be stretched! It may as well be made of rubber by this reasoning.

  2. This power-centered approach is interesting, but is it accurate to the time of the founders? Strikes me as an attempt to inscribe an Aristotelian view of inherent powers on a scheme of government erected by minds firmly in the sway of Hume’s rational dismantlement of such things.

    (New category of Originalism: “Original philosophical meaning”, perhaps.)

    Mr. D.

  3. I agree that a key problem with this rubric is that a great many matters subject to adjudication are entitlements subject to due process, and hence aren’t really simply discretionary grants of grace.

  4. In addition to being supported by tradition and history, military courts martial are a form of ADR, really. You join the military, you sign on to what is essentially its arbitration clause.

    Military commissions for enemies are a dicier example, but they have history and tradition and are arguably part of the war power.

    I guess what I would say about all these things, though, is that it is helpful to understand that the Judicial Power of Article III is essentially the importation of the British common law system into the Constitution. This is why we have stare decisis, this is why we have “inferior courts” (a concept that only makes sense if we have stare decisis), and the nature of the judicial power is tied up on the traditions and history we inherited from Britain and built on. This is why there’s still a law-equity distinction (which matters for such things as jury trials) which dates back to the English Chancery, for instance. And that’s why we have military tribunals. And that’s why executive agencies can perform certain sorts of adjudication without exercising judicial power, so long as some baseline of judicial review is available (the equivalent of the common law writ of mandamus, which we also inherited from Britain and which is part of the All Writs Act). All of those things are supported by history and tradition. (Yes, Britain didn’t have a detailed administrative state, but it had some executive agencies and a police power.)

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