The Adjudicative State
abstract. Over the last decade, the Supreme Court has advanced a new vision of the administrative state. The two commandments of administrative law in the Roberts Court are to give the President control over the executive branch and to separate government functions into their proper branches. Scholars often describe these two principles as related pieces of a broader effort to shift policymaking toward elected officials and strip power from the civil service. In the standard account, unitary executive theory and separation-of-powers formalism are complementary ideas, which reflect the Court’s skepticism about bureaucratic governance.
This Feature questions that consensus. It argues that there is a basic, inescapable tension at the heart of the Supreme Court’s approach to administrative law. When it comes to administrative courts, the Court’s core intellectual commitments are not complements. The two tenets of its jurisprudence are on a collision course: one requires presidential adjudication, while the other would move agency adjudication to Article III courts. There is no way to reconcile these two views.
Recognizing this conflict reveals deeper problems with both administrative-law doctrine and common critiques of the Supreme Court. Though it is described as anti-administrative, the Roberts Court protects and depends upon a vast system of administrative courts to resolve millions of legal claims outside of Article III. In this respect, the Court favors bureaucracy. Moreover, its defense of the adjudicative state is predicated on a regressive conception of due process, which its critics have largely overlooked.
authors. Robert A. Kindler Professor of Law, NYU School of Law; Associate Professor of Law, NYU School of Law. For helpful comments and conversations, we are grateful to Greg Ablavsky, Rachel Barkow, Will Baude, Rick Brooks, Justin Driver, John Ferejohn, Barry Friedman, Jake Gersen, Lewis Kornhauser, Daryl Levinson, Nick Parrillo, David Strauss, and participants in the NYU School of Law Faculty Workshop and the NYU School of Law Colloquium on Law, Economics, and Politics. Thanks also to Gaelin Bernstein, Lindsay Campbell, Yvonne Diabene, Natasha Menon, and Hannah Walser for excellent research assistance and to the editors of the Yale Law Journal for generative feedback on drafts.
Over the last decade, the Supreme Court has advanced a new vision of the administrative state. In a series of cases, the Roberts Court has begun to unravel the New Deal settlement in which administrative agencies, insulated from partisan politics, regulate large swaths of American life.1 These developments have received considerable attention from legal scholars. On the right, academics welcome the Court’s effort to legitimate an unaccountable bureaucracy.2 On the left, critics argue that the Court is undoing a hundred years of progress in which lawmakers found better ways to administer government as the country matured.3
As this debate has unfolded, scholars have rarely paused to ask whether the Court’s intellectual project is coherent. Academics have taken sides, celebrating or decrying the formalist turn in administrative law. But few have questioned whether the doctrine emerging from the Roberts Court makes sense on its own terms.4 If anything, both the Court’s critics and its defenders seem to agree that recent administrative-law cases reflect a systematic philosophy meant to strip power from the civil service.
This Feature questions that consensus. It argues that there is a basic, inescapable tension at the heart of the Supreme Court’s approach to administrative law. The two commandments of administrative law in the Roberts Court are to give the President control over the executive branch and to isolate power in the proper branch of government.5 The Court has committed itself to a strong version of unitary executive theory in which presidential power permeates Article II. It has also adopted a strict conception of the separation of powers in which the three branches of the federal government have distinct functions. Below, we describe this outlook as an administrative-law jurisprudence devoted to separate functions and presidential outcome control.
These two intellectual commitments seem to work in tandem, particularly if one focuses on regulatory policymaking. The Court’s theory sounds simple: push power up toward the President and out toward Congress in order to thwart policymaking by unelected bureaucrats. But if this approach is coherent—if misguided—when it comes to regulation, it runs aground when it comes to administrative courts. Judges in administrative tribunals decide millions of cases each year, often with extraordinarily high stakes.6 Resolving individual claims is at least half of what the administrative state does. Yet the Court’s jurisprudence produces a confused, contradictory account of administrative courts. When one focuses on adjudication, it becomes clear that the two tenets of the Court’s worldview are on a collision course.
Consider the conflict that the Court’s approach to administrative law creates for agency tribunals. Under the Court’s conception of the unitary executive, agency courts should be subjected to presidential control. By contrast, following through on the Court’s formalist theory of government functions would mean shifting the work of agency tribunals to Article III courts, where judging belongs. One precept of the new administrative law would require administrative courts to be democratized. The other would require them to be abolished. Recognizing this conflict raises serious questions about whether the Court’s jurisprudence is tenable or consistent, even within the Court’s own framework. Setting aside whether the Court’s goals are desirable, there is a more fundamental question about whether its project hangs together.
This Feature uses agency tribunals to expose this foundational problem with the Supreme Court’s administrative-law jurisprudence. In the process, we aim to complicate the conventional account of the Roberts Court. The current Court is widely described as antibureaucracy.7 But that label oversimplifies the ideological movement that is underway in administrative law. In the domain of adjudication, the Roberts Court is not so hostile to bureaucracy. On the contrary, the Court has resisted the logical implication of its own Article III formalism, which would dismantle administrative courts and shift their work to the federal judiciary. Instead, the Roberts Court appears bent on championing what one might call presidential adjudication, at least for the vast majority of agency tribunals.8 Moreover, as we explain below, the Court has preserved administrative courts by advancing a new, regressive theory of due-process rights. In this respect, the Roberts Court is probureaucracy: it defends and depends upon a vast adjudicative state to resolve millions of legal claims outside of Article III. And the Court’s theory of administrative law is predicated on a troubling conception of due process, which its critics have largely overlooked.
We come to these conclusions by way of immigration law. Drawing on our background in the field, this Feature turns to immigration courts to demonstrate the contradiction at the center of the Court’s jurisprudence and to imagine how the Court’s worldview might play out. Immigration law offers an illuminating example for administrative law because it is a domain in which “administration” is often synonymous with adjudication and political control of courts has long been the norm. Presidential adjudication is nothing new in immigration law. In fact, if administrative law takes the path we predict, immigration courts will become a model for the rest of the administrative state.
Immigration law is also a generative site for debates about administrative law because it is a field in which the politics of formalism are nuanced. A separation-of-powers jurisprudence that would eliminate administrative courts would be a boon for immigrants’ rights, and deference to administrative agencies is not obviously progressive when the agency in question is Immigration and Customs Enforcement. Immigration law puts the adjudicative side of the administrative state into perspective. That perspective, we argue, can help to advance debates about how the Supreme Court is transforming administrative law.