Judicializing the Administrative State

The Rise of the Independent Regulatory Commissions in the United States, 1883-1937

Hiroshi Okayama

• Editorial: Routledge
• Año: 2019
• ISBN:
  9781351393331
• Edición: 1
• Categoría: Sciences sociales
• Categoría: Études régionales

A basic feature of the modern US administrative state taken for granted by legal scholars but neglected by political scientists and historians is its strong judiciality. Formal, or court-like, adjudication was the primary method of first-order agency policy making during the first half of the twentieth century. Even today, most US administrative agencies hire administrative law judges and other adjudicators conducting hearings using formal procedures autonomously from the agency head. No other industrialized democracy has even come close to experiencing the systematic state judicialization that took place in the United States.

Why did the American administrative state become highly judicialized, rather than developing a more efficiency-oriented Weberian bureaucracy? Legal scholars argue that lawyers as a profession imposed the judicial procedures they were the most familiar with on agencies. But this explanation fails to show why the judicialization took place only in the United States at the time it did. Okayama demonstrates that the American institutional combination of common law and the presidential system favored policy implementation through formal procedures by autonomous agencies and that it induced the creation and development of independent regulatory commissions explicitly modeled after courts from the late nineteenth century. These commissions judicialized the state not only through their proliferation but also through the diffusion of their formal procedures to executive agencies over the next half century, which led to a highly fairness-oriented administrative state.

1 Why did the US administrative state judicialize?

In the United States today, around 150,000 removal cases that will determine the fate of asylum seekers and noncitizens suspected of unlawfully staying in, or attempting to enter, the country are annually completed by some three hundred immigration judges distributed among more than 50 immigration courts around the country. The courts hold formal hearings presided by the judges who are given such powers as administering oaths and subpoenaing witnesses. The courtrooms are configured to hold adversarial hearings, and the judges wear black robes, hold gavels, and make full records of proceedings. Immigration courts and judges, however, are not part of the judicial branch prescribed in Article III of the US Constitution. Technically speaking, the judges are administrative officers, and since 1983, the tribunals have been affiliated with the Executive Office for Immigration Review, a division of the Department of Justice.¹

1US Department of Justice, Executive Office for Immigration Review, Statistics Yearbook, Fiscal Year 2017 (2017), www.justice.gov/eoir/statistical-year-book (last accessed Dec. 4, 2018), 13; For a good overview of the immigration judiciary, see Arnold & Porter LLP, Reforming the Immigration System (Washington, DC: American Bar Association Commission on Immigration, 2010), Pt. 2. Also see Paul Grussendorf, My Trials: Inside America’s Deportation Factories, 2nd ed. (North Charleston, SC: CreateSpace Publishing, 2012). On the historical background of the judicialization of deportation proceedings, see Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995), esp. Pt. 2.

Immigration is not the only policy domain in which agency decisions are made in a courtlike manner. US administrative agencies employ approximately two thousand administrative law judges (ALJs), experienced lawyers charged with presiding over formal hearings. The most extensive role played by the ALJ corps is the conduct of hearings on retirement, survivors, disability insurance, and supplemental securities income benefits at the Social Security Administration (SSA), with which four in five ALJs are affiliated. Once named by the Supreme Court of the United States as “the largest adjudicative agency in the western world,” the ALJs receive more than 700,000 requests for hearings each year today.² While their proceedings are not strictly adversarial and their procedures less formal than those of judicial courts, the hearings are still considered very courtlike. The ALJs, said to constitute America’s “hidden” or “invisible” judiciary, enjoy considerable autonomy from other agency officers, including agency heads, in making decisions. Although not as extensive as the protection extended to Article III judges, they also receive substantial status protection regarding tenure and salaries. The hiring agency cannot instruct its ALJs to conduct investigative and prosecutorial functions or review their performance. They can be removed only for good cause, after a formal hearing by the Merit Systems Protection Board, an independent quasi-judicial agency.³

2“Administrative Law Judges,” US Office of Personnel Management website, www.opm.gov/services-for-agencies/administrative-law-judges/#url=ALJs-by-Agency (last accessed Dec. 26, 2018); Heckler v. Campbell, 461 U.S. 458 (1983), at 461, n. 2, quoting Jerry L. Mashaw, Charles J. Goetz, Frank I. Goodman, Warren F. Schwartz, Paul R. Verkuil, and Milton M. Carrow, Social Security Hearings and Appeals: A Study of the Social Security Administration Hearing System (Lexington, MA: Lexington Books, 1978), xi; US Government Accountability Office, Social Security Disability: Additional Measures and Evaluation Needed to Enhance Accuracy and Consistency of Hearings Decisions (Washington, DC: Government Accountability Office, 2017), 11.

3Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “The ‘Hidden Judiciary’: An Empirical Examination of Executive Branch Justice,” Duke Law Journal 2009 (2009): 1477–1530; William D. Schreckhise, Daniel E. Chand, and Nicholas P. Lovrich, “Decision Making in the Hidden Judiciary: Institutions, Recruitment, and Responsiveness Among U.S. Administrative Law Judges,” Administrative Theory and Praxis 40 (2018): 119–142; Jeffrey S. Lubbers, “Federal Administrative Law Judges: A Focus on Our Invisible Judiciary,” Administrative Law Review 33 (1981): 109–131; Daniel L. Skoler, “The Administrative Law Judiciary: Change, Challenge, and Choices,” Annals of the American Academy of Political and Social Science 462 (1982): 34–47; Kent Barnett, “Why Bias Challenges to Administrative Adjudication Should Succeed,” Missouri Law Review 81 (2016): 1025–1026; Jeffrey B. Litwak, ed., A Guide to Federal Agency Adjudication, 2nd ed. (Chicago: American Bar Association, 2012), Ch. 10.

While not widely known, quasi-judicial adjudication has long been a hallmark of US public administration. In arguing that the Americans historically “kept administration largely in the courts and in private hands,” William Forbath points out that even “where non-judicial public officials did gain authority, we judicialized the way these public officials exercise administrative power” [emphases in original]. Agency judiciality has two components: institutionalized autonomy of agency members from elected public officials, especially the president, and formal, courtlike procedures usually featuring adversarial settings, cross-examination of witnesses, and the taking of full records.⁴ The ALJs and formal hearings are both prescribed in the APA that covers all federal agencies. Most formal hearings today are conducted by ALJs and other officers generically known as administrative judges (AJs). Immigration judges are among the most prominent example of AJs. The use of courtlike hearings, however, has not always been limited to those conducted by such officers specializing in adjudication. Until the mid-twentieth century, formal adjudication was the primary mode of agency policy making in the United States. The origins of the ALJ system could be traced to the hearing examiners introduced by the Hepburn Act of 1906. The examiners were to hold formal hearings regarding railroad regulation on behalf of the members of the ICC who, after two decades of officiating all hearings themselves, were no longer able to catch up with increasingly heavy caseloads. Other agencies soon followed suit, although heads of executive agencies also conducted formal hearings. Agencies have used courtlike hearings not just to carry out the quasi-judicial function of discretionary interpretation and application of law to individual cases but also for quasi-legislative rulemaking, such as setting new railroad tariffs.⁵

4William E. Forbath, “The Long Life of Liberal America: Law and State-Building in the U.S. and England,” Law and History Review 24 (2006): 183; Ernst, Tocqueville’s Nightmare, 2–5. Different from some works, the influence of judicial courts on administrative agencies is not included in the definition of judiciality, as it is widely considered a cause of agency judiciality. Loren A. Smith, “Judicialization: The Twilight of Administrative Law,” Duke Law Journal 1985 (1985): 428. Ralph F. Fuchs, “Fairness and Effectiveness in Administrative Agency Organization and Procedures,” Indiana Law Journal 36 (1960): 26–27. While agency independence could take different forms, this book concentrates on the adjudicators’ protection from discretionary removal because of its interest in agency judiciality. See Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).

5Paul R. Verkuil, “Reflections upon the Federal Administrative Judiciary,” UCLA Law Review 39 (1992): 1341–1363; For an overview of AJs, see Michael Asimow, Adjudication Outside the Administrative Procedure Act (Washington, DC: Administrative Conference of the Unite States, 2016) and Kent H. Barnett and Russell Wheeler, “Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal,” Georgia Law Review 53 (2019): 1–127; Blachly and Oatman, Federal Regulatory Action and Control, 59–65; Kent Barnett, “How the Supreme Court Derailed Formal Rulemaking,” George Washington Law Review Arguendo 85 (2017): 1–24.

The United States is the only industrialized democracy in which formal, courtlike adjudication ever became the primary mode of making policy decisions at major administrative agencies. As Bernard Schwartz and H. W. R. Wade comment in their comparative study of British and American administrative law, “[a]dministrative procedure in the United States has acquired most of the attributes of courtroom procedure” to the degree that “must strike a foreign observer forcibly.”⁶ American administrative agencies have had a pronounced tendency to make policy using courtlike hearings. True, formal hearings have been used extensively elsewhere in the world by government bodies reviewing agency decisions such as the French Conseil d’État and the Administrative Appeals Tribunal in Australia. But arguably, no country has come close to the judicialization of first-order agency decision-making in the United States. As will be discussed in the conclusion, the judiciality of the American administrative process has eroded since the mid-twentieth century but still characterizes the US public administration in a profound way.⁷

6Bernard Schwartz and H. W. R. Wade, Legal Control of Government: Administrative Law in Britain and the United States (Oxford: Clarendon Press, 1972), 107; Bernard Schwartz, American Administrative Law (London: Sir Isaac Pitman & Sons, 1950); H. W. R. Wade, Towards Administrative Justice (Ann Arbor: University of Michigan Press, 1963), 52–53.

7Frederick Davis, “Judicialization of Administrative Law: The Trial-type Hearing and the Changing Status of the Hearing Officer,” Duke Law Journal 1977 (1977): 389–408; Marshall E. Dimock, Law and Dynamic Administration (New York: Praeger, 1980), Chs. 1 and 10; Peter Cane, “Judicial Review and Merits Review: Comparing Administrative Adjudication by Courts and Tribunals,” in Comparative Administrative Law, ed. Susan Rose-Ackerman and Peter L. Lindseth (Cheltenham, UK: Edward Elgar, 2010), 426–448; Reuel Schiller, “The Historical Origins of American Regulatory Exceptionalism,” in Comparative Law and Regulation, ed. Francesca Bignami and David Zaring (Cheltenham, UK: Edward Elgar, 2016), 55–72; Michael Asimow and Jeffrey S. Lubbers, “The Merits of ‘Merits Review’: A Comparative Look at the Australian Administrative Appeals Tribunal,” AIAL Forum 67 (2011): 58–79; Daniel L. Skoler and Cynthia E. Weixel, “Social Security Adjudication in Five Nations,” Administrative Law Review 33 (1981): 281; Peter Cane, Administrative Tribunals and Adjudication (Portland, OR: Hart Publishing, 2009), esp. Ch. 1.

Why and how did the United States alone come to experience this exceptionally high degree of administrative state judicialization? This is an intriguing question, as the judiciality in administrative decision-making strongly affects American governance, and not all of its features are popular. Consuming much more time and other types of costs before reaching a decision than other modes of policy making, courtlike adjudication has been frequently criticized for its inefficiency. Immigration courts have produced backlogs of hundreds of thousands of cases, and on average, it now takes around five hundred days to process a case. Although such a logjam definitely owes much to increasing caseloads and the government’s failure to supply the courts with sufficient organizational and human resources, there is no doubt that the formality of proceedings is a principal cause of the prolonged wait time. The situation is similar for disability hearings at the SSA. An average applicant for pension payment must wait for more than a year before being heard by an ALJ after the denial of the initial claim by an SSA state office.⁸

8For latest figures, see Transactional Records Access Clearinghouse, “Average Time Pending Cases Have Been Waiting in Immigration Courts,” http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog_avgdays.php (last accessed Dec. 26, 2018); Transactional Records Access Clearinghouse, “Backlog of Pending Cases in Immigration Courts as of December 2017,” http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php (last accessed Dec. 26, 2018); US Social Security Administration, Leading the Hearings and Appeals Process into the Future: A Plan for Compassionate and Responsive Service (2016), www.gao.gov/assets/690/688824.pdf (last accessed Dec. 26, 2018).

Courtlike agencies have also been susceptible to inconsistency. Even if each adjudicator decides cases consistently, their autonomy impedes coherence among adjudicators. As a result, the state inevitably lacks uniformity in policy. The disposition and allowance rates for ALJ adjudication on disability insurance at the SSA and deportation rates for immigration judges, for instance, have very high variation across judges. Certain personal attributes of the ALJs, such as gender, party affiliation, and previous career, are known to have strong correlation with their conclusions. Some ALJs stand out for unusually high rates of overturning state office decisions, even raising the suspicion that they are not interpreting the law and facts carefully. Significant variation has also been found between immigration courts and ALJs in different states. There is a marked difference in the proportion of deportation decisions not only between immigration judges with different personalities but also between immigration courts in different regions. This haphazardness regarding deportation proceedings has been described as “refugee roulette.” While some inconsistency is unavoidable in similar institutional settings – judicial courts are also known for it – it has been a point of attack from those who prefer more centralized policy making.⁹

9Mashaw et al., Social Security Hearings and Appeals; Harold J. Krent and Scott Morris, Achieving Greater Consistency in Social Security Disability Adjudication: An Empirical Study and Suggested Reforms (Washington, DC: Administrative Conference of the United States, 2013); Social Security Advisory Board, Aspects of Disability Decision Making: Data and Materials (2012), available at www.ssab.gov/Details-Page/ArticleID/217/CHARTBOOK-Aspects-of-Disability-Decision-Making-Data-and-Materials-February-2012 (last accessed Dec. 4, 2018); US Government Accountability Office, Social Security Disability; Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication and P...