Rivkin & Grossman In WSJ: Why Captive Administrative Courts Are “Built To Fail” In Delivering Due Process!


David B. Rivkin, Jr. and Andrew M. Grossman write in the WSJ:

“Administrative law judges are agency employees. The proceedings they oversee provide fewer protections than court cases. They also tend to set stern deadlines and limit the right to factual investigation, often leaving defendants to rely on the SEC’s evidence. According to a 2015 Wall Street Journal analysis, the agency’s shift paid off: Through the beginning of that year, it won 90% of cases in its in-house court, compared with 69% of regular court cases. Administrative decisions can be appealed to court but are rarely reversed. That’s because the judges apply a deferential “clear error” standard to the agency’s factual findings.

The due-process problems inherent in this arrangement are apparent. Less obvious, at least to the SEC, is that it also violates the Constitution’s Appointments Clause, which requires Senate hearings and confirmation votes for department heads and other senior officials. To promote political accountability, the Constitution also requires that “inferior officers” with significant responsibility be appointed by the president or senior officials who are confirmed by the Senate.”


Although Rivkin and Grossman were writing about Administrative Law Judges within the SEC, most of the same arguments could be made about U.S. Immigration Judges within the Department of Justice.

The article suggests that if successful, challenges to the existing administrative judiciary in the Article III Courts might bring down the entire 80-year largely failed experiment with specialized administrative courts attempting to mete out justice within the enforcement arm of the Executive Branch.  That, in turn, would require the creation of more truly independent specialized courts, such as the Tax Court and the Bankruptcy Court, and/or the transfer of many additional cases to the Article III Courts, where they perhaps could be handled by appointing more U.S. Magistrate Judges.