Article III, the Bill of Rights, and Administrative Adjudication

By John M. Golden & Thomas H. Lee
November 1, 2023

Modern reconsideration of legal constraints on the federal administrative state has commonly focused on agency rulemaking but seems increasingly concerned with agency adjudication.  In this Essay, we provide an overview of constitutional issues implicated by administrative adjudication.  We specifically explain how and why the so-called public-rights doctrine generally allows federal administrative adjudication outside private-rights actions substantially linked to traditional actions in law, equity, or admiralty.  We also discuss how constitutional provisions outside Article III—including Bill of Rights protections of individuals as against the federal government—may nonetheless require a role for Article III courts even in so‑called public‑rights cases, either as an alternative court of first instance or as an appellate court.  This role for Article III courts might become more important with the increased political control of administrative adjudication that an Article II line of the U.S. Supreme Court’s separation-of-powers case law might ultimately demand.