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Agency Adjudication and Judicial Nondelegation: an Article Iii Canon

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Agency Adjudication and Judicial Nondelegation: an Article Iii Canon Copyright 2013 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 107, No. 4 AGENCY ADJUDICATION AND JUDICIAL NONDELEGATION: AN ARTICLE III CANON Mila Sohoni ABSTRACT—The rules governing judicial review of adjudication by federal agencies are insensitive to a critical separation of powers principle. Article III jurisprudence requires different treatment of agency adjudication depending on whether the agency is adjudicating a “private right” or a “public right.” When agencies adjudicate private rights, review of the agency adjudication must be available to an Article III court on a direct appellate basis. In contrast, Article III jurisprudence does not require review to an Article III court on a direct appellate basis of agency adjudications of purely public rights. That means that federal courts reviewing agency adjudications of private rights have a greater responsibility for vindicating Article III values than federal courts reviewing public rights adjudications. Administrative law’s deference doctrines do not reflect this distinction. The degree of deference courts owe to agencies does not vary depending on whether adjudication involves “public” or “private” rights, in the Article III sense of those terms. In either case, Article III courts review agency adjudication deferentially. This Article challenges that indifference. Courts should calibrate their degree of deference in accordance with the Article III line and apply more robust review to agency adjudication where private rights are at stake. This approach would vindicate separation of powers values, promote better administrative decisionmaking in private rights cases, and dovetail with entrenched doctrines of constitutional and administrative law. Interestingly, the logic of Article III elaborated here suggests one explanation for why some federal courts, in certain cases implicating quasi-private rights, are declining to defer to agency adjudications in a manner recognized to be inconsistent with the demands of ordinary administrative law. AUTHOR—Assistant Professor, University of San Diego School of Law. Many thanks to Rachel Barkow, Adam Cox, Chris Egleson, Roy Englert, Richard Fallon, Heather Gerken, Rick Hills, Ron Levin, Anton Metlitsky, Jim Pfander, Daphna Renan, David L. Shapiro, Catherine Sharkey, Aaron Simowitz, Adam Zimmerman, and participants in the NYU Lawyering Scholarship colloquium for conversations and comments on earlier drafts. I am grateful to Amelia Frenkel and Lilia Stancheva for their diligent research assistance and to the editors of the Northwestern University Law Review for their thoughtful edits. 1569 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W INTRODUCTION ........................................................................................................... 1570 I. RIGHTS NEUTRALITY IN ADMINISTRATIVE LAW ................................................... 1578 II. ARTICLE III AND ADMINISTRATIVE AGENCIES ..................................................... 1581 A. Private Rights and Public Rights .............................................................. 1584 B. The Necessity of Appellate Review in Private Rights Cases ..................... 1589 III. CALIBRATING DEFERENCE TO ARTICLE III .......................................................... 1594 A. Judicial Nondelegation and Private Rights .............................................. 1595 B. A Discussion of Objections ....................................................................... 1600 IV. DOCTRINAL DOVETAILS ...................................................................................... 1609 A. Accounts of Article III ............................................................................... 1610 B. A Diorama of the Dovetails ...................................................................... 1615 V. JUDICIAL NONDELEGATION IN IMMIGRATION CASES ............................................ 1620 CONCLUSION .............................................................................................................. 1624 INTRODUCTION Judicial review of agency action is highly attuned to structural constitutional principles.1 The degree of deference courts owe to agencies varies according to whether federalism values are at stake,2 whether matters of foreign affairs are involved,3 or whether the traditional segregation of functions between the branches would be threatened.4 In marked contrast, judicial review of agency action is not calibrated to reflect the possible impact of agency action upon individual rights. In 1 A large scholarly literature addresses the interaction between structural constitutional principles and judicial deference to agencies. See, e.g., Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649, 716 (2000) (arguing for eliminating Chevron deference for act of state doctrine and dormant foreign affairs doctrine); Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L. REV. 469, 489–90 (1996) (criticizing the conventional view that giving Chevron deference to the Department of Justice in its interpretation of criminal statutes would breach the traditional division between the criminal-lawmaking and criminal-enforcement functions); Catherine M. Sharkey, Preemption as a Judicial End-Run Around the Administrative Process?, 122 YALE L.J. ONLINE 1, 10 (2012), http://yalelawjournal.org/2012/04/30/sharkey.html (arguing for hard look “with teeth” review of preemption decisions); Ernest A. Young, Executive Preemption, 102 NW. U. L. REV. 869 (2008) (arguing for limiting principles that would restrict administrative preemption more than under current law). See generally Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315 (2000) (describing how various canons of construction applicable to administrative agencies constitute a modern incarnation of nondelegation doctrine). 2 See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 464 (1991). 3 See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 256–59 (1991) (rejecting deference to agency view that Title VII applied to discrimination outside United States). 4 Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring in the judgment) (“[W]e have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.”). 1570 107:1569 (2013) Agency Adjudication FCC v. Fox Television Stations, Inc.,5 the Supreme Court held that the fact that an agency rule potentially impinged on First Amendment speech did not trigger stricter “arbitrary-and-capricious” review.6 That the agency’s action implicated constitutional liberties, the Court held, did not alter the stringency of judicial review.7 This Article shows why attentiveness to structural constitutional principles requires attentiveness to individual rights. The reason is Article III. Though notoriously murky,8 the case law governing one’s entitlement to an Article III tribunal rests on a central distinction involving individual rights: much depends on whether a case involves traditional “private rights” to life, liberty, and property, on the one hand, or whether it involves “public rights,” such as statutory entitlements, on the other. Of course, Article III also enshrines a key structural constitutional principle—the principle of independent judicial review. This is surely as vital a structural principle as congressional control over foreign affairs, segregation between criminal lawmaking and criminal enforcement functions, or federalism. Article III thus knits together individual rights with structural constitutional values in a manner that should be highly salient for administrative law. The Supreme Court recently admitted, however, that its Article III case law “fails to provide concrete guidance” on how the distinction between public and private rights affects the adjudicative powers of agencies.9 This Article takes up that implicit challenge by 5 556 U.S. 502 (2009). 6 Id. at 516 (“If the Commission’s action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative Procedure Act’s ‘arbitrary [or] capricious’ standard; its lawfulness under the Constitution is a separate question . .”). 7 Id. (“The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts. We know of no precedent for applying it to limit the scope of authorized executive action. In the same section authorizing courts to set aside ‘arbitrary [or] capricious’ agency action, the Administrative Procedure Act separately provides for setting aside agency action that is ‘unlawful,’ which of course includes unconstitutional action. We think that is the only context in which constitutionality bears upon judicial review of authorized agency action.” (citations omitted)). 8 Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 847 (1986) (“[O]ur precedents in this area do not admit of easy synthesis . .”); Paul M. Bator, The Constitution as Architecture: Legislative and Administrative Courts Under Article III, 65 IND. L.J. 233, 239–40 (1990) (“The Supreme Court opinions devoted to the subject of the validity of legislative and administrative tribunals are as troubled, arcane, confused and confusing as could be imagined. It seems obvious that the Court has struggled with the subject, and the impression is strong that it is the subject, not the Court, that has won.”); John Harrison,
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