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The Legitimacy of Agency Adjudication:The Most Complicated Question in Constitutional Law [No. 86] - YouTube
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Is there a constitutional problem with those
non-Article Three, non-judge executive officers
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doing things that look like what judges do?
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That, I believe, is the single most difficult,
long-lived, unresolved, possibly unresolvable
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question in all of American Constitutional
law.
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The reason why that one is so difficult goes
to the heart of the whole scheme of separation
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of powers.
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The way separation of powers works is it vests,
the constitution vests distinct kinds of governmental
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powers -- legislative, executive, judicial
in distinct institutions - Congress, the President,
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the Courts.
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What the Constitution does not do is define
what counts as legislative power, what counts
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as executive power, what counts as judicial
power.
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It just assumes that most of the time people
will know it when they see it.
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And often that's true.
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Particularly when you're distinguishing legislative
power from executive power.
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It's harder to do that with the judicial power
because it wasn't until the middle of the
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18th century, just literally a few decades
before the Constitution was ratified, that
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the judicial power became recognized as a
distinct power of government.
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For most of English legal history, what we
now call the judicial power was part of the
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executive power.
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It just was.
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The judges were agents of the king.
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So the whole notion of the judicial power
as something distinct from the executive power
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is a very new thing at the time of the Constitution.
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So it's not like there was an enormous body
of law or doctrine or prior understandings
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that would draw the lines between executive
and judicial power.
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So we don't have a lot to go on there.
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As a result, we have spent two and a quarter
centuries trying to figure out a way to draw
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that line.
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Nobody, to my knowledge, has succeeded in
doing it.
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The answer may ultimately lie in something
that shows up three years after the Constitution
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is ratified, and that is some language in
the Fifth Amendment talking about how you're
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not supposed to deprive people of life, liberty,
or property without due process of law.
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If due process of law requires the participation
of an actual honest to goodness Article Three
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judge, then the answer may be that administrative
adjudication that deprives people of life,
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liberty, or property would be problematic.
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Most administrative adjudication doesn't do
any of those things.
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Most administrative adjudication deals with
how the government is going to hand out benefits,
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hand out Social Security, hand out other forms
of welfare.
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And if those decisions don't deprive people
of life, liberty, or property, because you
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don't have any right to have it in the first
place, then it wouldn't be a problem to have
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all of that done by administrative agencies.
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But that's all very speculative.
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This, as I said, is maybe the most complicated
question in all of American Constitutional
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law.
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