Judicial Power and the Administrative State

• Author: James L. Dennis
• Position: Circuit Judge, United States Court of Appeals for the Fifth Circuit

Circuit Judge, United States Court of Appeals for the Fifth Circuit. Delegate, Chairman of Judiciary Committee, Louisiana Constitutional Convention of 1973.

Article V of the 1974 Louisiana Constitution ("Article V") furthers the same basic objects and values that are promoted by Article III of the United States Constitution ("Article III"): the establishment of an independent judiciary to serve as a barrier to the encroachments and oppressions of the legislative and executive branches; to provide impartial administration of the laws; to enforce the limited constitution's specified exceptions to the legislative authority; to interpret the constitution and laws as its proper and peculiar province; and to guard the constitution and the rights of individuals and minorities from dangerous innovations and serious oppressions by the representatives of the people.¹ This essay seeks to evaluate and gain insight into the meaning of Article V and its role in the modern administrative state by comparing and contrasting its characteristics with that of Article III in view of the jurisprudence and scholarly commentary resulting from the proliferation of administrative agencies authorized to exercise quasi-judicial powers.

The modern administrative state magnifies the danger of encroachment upon judicial power and jurisdiction by the legislative and executive branches through the creation of administrative agencies with adjudicatory powers. To the detriment of the general public interest, an agency can be co-opted by the special interests that the legislature authorized it to regulate.² A highly organized interest group may have sufficient political influence to induce the legislative branch to expand a captured agency's adjudicatory jurisdiction in order to remove matters from the initial jurisdiction of the courts.³Unless the courts maintain their independence, disallow unconstitutional intrusions into judicial power, and exercise meaningful appellate review of agency adjudications, the judicial power necessary to protect individuals from the effects of biased, arbitrary, or oppressive governmental and bureaucratic action can be undermined.⁴

I

Article V vests the state judicial power and general jurisdiction directly in courts established or authorized by the state constitution. Unlike Article III, the Louisiana judiciary article does not merely establish a supreme court and authorize the legislative branch to ordain and establish limited jurisdiction inferior courts. Consequently, Article V differs significantly from Article III in this respect, but otherwise serves the same essential constitutional purpose, viz., the establishment of an independent judiciary to enforce the separation of powers doctrine, checks and balances, and other constitutional limitations upon the powers of the executive and legislative branches.

The first section of the judiciary article of the state and federal constitutions establishes a supreme court and vests all of the judicial power in it and other courts. Article V, Section 1 of the 1974 Louisiana Constitution states that "[t]he judicial power is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this Article."⁵ Article III, Section 1 of the United States Constitution provides, in part, that "[t]he judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."⁶ The most significant difference between the provisions, of course, is that the Louisiana legislature is permitted to create courts only below the district court level as authorized by Article V, but Congress is empowered by Article III to establish all courts "inferior" to the supreme court. Congress could establish any number of inferior Article III courts, or it could elect to create none, allowing the state courts to have initial jurisdiction of all litigation over which the Supreme Court's judicial power extends. The Louisiana legislature may shape the court system only at the fourth level, below the district courts, within limits prescribed by Article V.

The two judiciary articles promote judicial independence in different ways. Article V, Section 21 provides that "[t]he term of office, retirement benefits, and compensation of a judge shall not be decreased during the term for which he is elected."⁷ Section 22 of Article V provides that all judges shall be elected, except for appointees temporarily filling vacancies. Article III states that "[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."⁸ Federal judges are appointed by the President with the advice and consent of the Senate.⁹ Although Louisiana judges are elected for six and ten year terms, rather than appointed for life during good behavior as are federal Article III judges, they are electorally accountable only within their districts, and therefore enjoy independence from control by the executive or legislative branch. A Louisiana judge is not protected against diminution in compensation during his or her entire continuance in office, but is protected from a reduction of compensation, retirement benefits, and terms of office during the term for which the judge is elected.

The jurisdictional provisions of Article III confine judicial power more narrowly and afford it less protection from executive and legislative incursions than those of Article V. Federal courts are courts of limited, not general, jurisdiction. They are empowered to hear only cases that are within the judicial power of the United States, as defined in Article III,¹⁰ and that are within a jurisdictional grant by Congress.¹¹ Louisiana's district courts, appellate courts, and supreme court, like those of most states, are courts of general jurisdiction, and the presumption is that they have subject matter jurisdiction unless a showing is made to the contrary.¹² Article V, Section 16 provides, with few exceptions, that the district courts "shall have original jurisdiction of all civil and criminal matters."¹³ Article V divides the general appellate jurisdiction over district court cases between the supreme court and the courts of appeal, according to case classification.¹⁴ Article V vests in the supreme court general supervisory jurisdiction over all other courts, and supervisory jurisdiction in each court of appeal over cases which arise within its district.¹⁵

In both the state and federal systems, litigation has arisen over whether an unconstitutional divestment of judicial power results when the legislative branch authorizes an executive or administrative officer to perform adjudicatory functions. Neither Article III nor Article V defines the terms "vested" and "judicial power." Additionally, Article V does not provide a definition of the "original jurisdiction of all civil and criminal matters" that is vested in a district court. The Louisiana cases have concerned whether the adjudication of a particular matter by an executive or administrative adjudicator would unconstitutionally divest a "civil matter" from the district courts' "original jurisdiction." A much larger number of federal cases have dealt with the related question of whether Congress violated Article III by assigning to executive or administrative officers, who do not have constitutionally guaranteed life tenure or undiminished compensation during their continuance in office, the power to adjudicate cases or controversies that would otherwise fall within the jurisdiction of Article III courts.

II

In the federal system the assignment of adjudicatory functions to executive and administrative tribunals has produced a long and sometimes tortuous history of Supreme Court decisions. From the early days of the nation, Congress has enacted laws placing the power of adjudication of certain matters in non-Article III officers, i.e., officers who do not enjoy the safeguards of life tenure and undiminishable salary.

In Murray's Lessee v. Hoboken Land & Improvement Co.,¹⁶ the Supreme Court recognized a category of "public rights" whose adjudication, though a judicial act, Congress may assign to tribunals lacking the essential characteristics of Article III courts. This doctrine has been "explained in part by reference to the traditional principle of sovereign immunity, which recognizes that the Government may attach conditions to its consent to be sued."¹⁷ But the public-rights doctrine also has been said to "draw[] upon the principle of separation of powers, and a historical understanding that certain prerogatives were reserved to the political Branches of Government."¹⁸ Thus, the public-rights doctrine was said to "extend[] only to matters arising 'between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments,' and only to matters that historically could have been determined exclusively by those departments."¹⁹

In American Insurance Co. v. Canter,²⁰ Chief Justice Marshall held that Congress may create non-Article III courts to adjudicate disputes in the federal territories, based on the much criticized theory that their jurisdiction is not part of the Article III judicial power, "but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States."²¹ Under the influence of these decisions, the Court ratified the courts martial,²² and Congress, apparently based on the public rights concept, created the Court of Claims, a court of private land claims, and a court of customs and patent appeals.²³

The Supreme Court's jurisprudence has remained settled with...