In fall 2021, Adam Cox, Robert A. Kindler Professor of Law, and Professor of Law Emma Kaufman were discussing the US Supreme Court’s recent term as they updated the syllabi for the 1L course they each teach in the spring, Legislation and the Regulatory State, which examines how legislation is created, implemented, and interpreted in the United States.
In particular, Cox and Kaufman were trying to determine how to teach US v. Arthrex, a ruling that found an agency tribunal within the US Patent and Trademark Office unconstitutional because it could issue decisions that the tribunal’s presidentially-appointed director could not alter or reverse. As the two professors talked through the case’s implications, they began to sense an underlying tension in the prevailing philosophies of the Court under Chief Justice John Roberts.
“It was an oddball case that didn’t seem to fit into the standard narrative of the Court,” says Kaufman. “But when we started to focus on the adjudicative implications of it, suddenly a lot of conclusions followed about the kinds of presumptions the field was making that didn’t actually fit what the Court was up to.”
Their discussions led to a new paper, published in April in the Yale Law Journal. Cox and Kaufman point to what they call an unresolvable incongruity in the Court’s vision of the administrative state—a contradiction that they argue is on course to fundamentally reshape American administrative law.
In general, the co-authors write, scholars and spectators of the Court have isolated two doctrines, or theories of interpretation based on precedent, that seem to govern the Court’s administrative law decisions. Cox and Kaufman name the first of these doctrines “separate functions,” or the belief that each branch of the government has a distinct role and powers, and the second “outcome control,” which holds that the president should have control over all executive branch actors and agencies.
How the Court deals with agency courts highlights the central tension between these theories. In Arthrex, the Court leaned on the fact that tribunals are a part of the executive branch. Under the doctrine of outcome control, the final authority of these tribunals must lie with the only person vested with executive power—the president. But according to the Court’s separate functions doctrine, these agency courts should not even exist, because their central function—to resolve legal claims—is vested only in the federal judiciary.
Despite the tension between separate functions and outcome control, the Court is unlikely to dissolve administrative tribunals, which handle millions of legal claims per year, the co-authors write. What Arthrex changes, they say, is that the agency’s independence has been massively eroded, with the president given the power to alter or reverse any agency judge’s ruling.
To illustrate the results of this doctrinal conflict, as well as to give a glimpse to the future of presidential adjudication in agency courts, the co-authors point to an area of their shared expertise: immigration court. “Here the dysfunction in these two doctrines has long been the rule,” says Cox. Judges are appointed by the attorney general, who has the absolute power to reverse or revise any decision. “According to [the separate functions doctrine], immigration courts seem wildly unconstitutional and require an elaborate justification,” the authors write. “According to the [doctrine of outcome control], immigration courts are the paragon of constitutionality.”
The Roberts Court has not yet had an opportunity to weigh in on the constitutionality of the existence of administrative courts, the co-authors write. However, they argue that the Roberts Court will ultimately put an end to its doctrinal conflict by embracing presidential adjudication. Across agencies, they predict, the president and his appointees will have increasing control.
“In immigration law, political control of immigration courts has always been the norm,” Cox and Kaufman write. “…[The Supreme Court] is simply exporting the pathologies of immigration law to the rest of the administrative state.”
Cox and Kaufman note that the Supreme Court’s approach gives new importance to the complex question of which kinds of disputes should be heard in administrative courts. Their paper doesn’t seek to resolve that issue, the co-authors say. Rather, they hope that their research helps revive a neglected area of administrative law scholarship, while offering a different take on the prevailing understanding of the Roberts Court as antibureaucracy.
“When situated alongside the Court’s deregulatory jurisprudence, the rise of presidential adjudication starts to look like the emergence of a new vision of the civil service,” they conclude in their paper. “[One] in which bureaucrats exist to administer a more political kind of justice.”
Posted November 27, 2023.