The Adjudicative State.

• Author: Cox, Adam B.

FEATURE CONTENTS INTRODUCTION 1771 1. THE NEW RULES OF ADMINISTRATIVE LAW 1773 A. Separate Functions 1774 B. Outcome Control 1778 II. THE ADJUDICATION CRISIS 1781 A. Presidential Adjudication 1783 B. Article III Essentialism 1788 III. IMMIGRATION AS A MODEL FOR THE ADMINISTRATIVE STATE 1797 A. A Brief History of Immigration Courts 1798 B. Old Liberty, New Liberty, and the Defense of Executive Courts 1803 IV. THE LESSONS OF ADJUDICATION 1809 A. A New Era of Constitutionalism 1809 B. The Probureaucracy Court 1812 CONCLUSION 1817 INTRODUCTION

Over the last decade, the Supreme Court has advanced a new vision of the administrative state. In a series of cases, the Roberts Court has begun to unravel the New Deal settlement in which administrative agencies, insulated from partisan politics, regulate large swaths of American life. (1) These developments have received considerable attention from legal scholars. On the right, academics welcome the Court's effort to legitimate an unaccountable bureaucracy. (2) On the left, critics argue that the Court is undoing a hundred years of progress in which lawmakers found better ways to administer government as the country matured. (3)

As this debate has unfolded, scholars have rarely paused to ask whether the Court's intellectual project is coherent. Academics have taken sides, celebrating or decrying the formalist turn in administrative law. But few have questioned whether the doctrine emerging from the Roberts Court makes sense on its own terms. (4) If anything, both the Court's critics and its defenders seem to agree that recent administrative-law cases reflect a systematic philosophy meant to strip power from the civil service.

This Feature questions that consensus. It argues that there is a basic, inescapable tension at the heart of the Supreme Court's approach to administrative law. The two commandments of administrative law in the Roberts Court are to give the President control over the executive branch and to isolate power in the proper branch of government. (5) The Court has committed itself to a strong version of unitary executive theory in which presidential power permeates Article II. It has also adopted a strict conception of the separation of powers in which the three branches of the federal government have distinct functions. Below, we describe this outlook as an administrative-law jurisprudence devoted to separate functions and presidential outcome control.

These two intellectual commitments seem to work in tandem, particularly if one focuses on regulatory policymaking. The Court's theory sounds simple: push power up toward the President and out toward Congress in order to thwart policymaking by unelected bureaucrats. But if this approach is coherent--if misguided--when it comes to regulation, it runs aground when it comes to administrative courts. Judges in administrative tribunals decide millions of cases each year, often with extraordinarily high stakes. (6) Resolving individual claims is at least half of what the administrative state does. Yet the Court's jurisprudence produces a confused, contradictory account of administrative courts. When one focuses on adjudication, it becomes clear that the two tenets of the Court's worldview are on a collision course.

Consider the conflict that the Court's approach to administrative law creates for agency tribunals. Under the Court's conception of the unitary executive, agency courts should be subjected to presidential control. By contrast, following through on the Court's formalist theory of government functions would mean shifting the work of agency tribunals to Article III courts, where judging belongs. One precept of the new administrative law would require administrative courts to be democratized. The other would require them to be abolished. Recognizing this conflict raises serious questions about whether the Court's jurisprudence is tenable or consistent, even within the Court's own framework. Setting aside whether the Court's goals are desirable, there is a more fundamental question about whether its project hangs together.

This Feature uses agency tribunals to expose this foundational problem with the Supreme Court's administrative-law jurisprudence. In the process, we aim to complicate the conventional account of the Roberts Court. The current Court is widely described as antibureaucracy. (7) But that label oversimplifies the ideological movement that is underway in administrative law. In the domain of adjudication, the Roberts Court is not so hostile to bureaucracy. On the contrary, the Court has resisted the logical implication of its own Article III formalism, which would dismantle administrative courts and shift their work to the federal judiciary. Instead, the Roberts Court appears bent on championing what one might call presidential adjudication, at least for the vast majority of agency tribunals. (8) Moreover, as we explain below, the Court has preserved administrative courts by advancing a new, regressive theory of due-process rights. In this respect, the Roberts Court is probureaucracy: it defends and depends upon a vast adjudicative state to resolve millions of legal claims outside of Article III. And the Court's theory of administrative law is predicated on a troubling conception of due process, which its critics have largely overlooked.

We come to these conclusions by way of immigration law. Drawing on our background in the field, this Feature turns to immigration courts to demonstrate the contradiction at the center of the Court's jurisprudence and to imagine how the Court's worldview might play out. Immigration law offers an illuminating example for administrative law because it is a domain in which "administration" is often synonymous with adjudication and political control of courts has long been the norm. Presidential adjudication is nothing new in immigration law. In fact, if administrative law takes the path we predict, immigration courts will become a model for the rest of the administrative state.

Immigration law is also a generative site for debates about administrative law because it is a field in which the politics of formalism are nuanced. A separation-of-powers jurisprudence that would eliminate administrative courts would be a boon for immigrants' rights, and deference to administrative agencies is not obviously progressive when the agency in question is Immigration and Customs Enforcement. Immigration law puts the adjudicative side of the administrative state into perspective. That perspective, we argue, can help to advance debates about how the Supreme Court is transforming administrative law.

1. THE NEW RULES OF ADMINISTRATIVE LAW

   The Supreme Court's attack on the administrative state is premised on two ideas. First, the Court has adopted a rigid conception of the separation of powers in which the three branches of the federal government have distinct functions and boundaries, which federal judges are supposed to police. (9) Second, the Court has embraced a strong version of unitary executive theory, which requires direct presidential control of agency administration. (10) These two ideas represent the emergence of a new and highly interventionist approach to structural constitutional law. Together, they have laid the groundwork for a fundamental reconstruction of the national government.

   It is worth emphasizing the word new in this account. As others have observed, the Court's recent administrative-law cases are neither textualist (11) nor originalist. (12) Instead, they are the realization of a novel political theory derived from freestanding ideas about how American government should work. (13) This Part brings those lines of thought together and distills the core beliefs animating this new brand of administrative law.

   1. Separate Functions

      The first pillar of the Court's administrative-law jurisprudence is an atomized understanding of the separation of powers. Two decades ago, M. Elizabeth Magill distinguished between two different conceptions of the separation of powers: a "separation-of-functions" theory that emphasized the need to isolate judicial, legislative, and executive power in the proper branch of government; and a "balance-of-powers" theory that stressed interaction and competition between government departments. (14) The first theory is especially concerned about combining multiple powers--say, legislative and executive power--in a single branch. For those in the separation-of-functions camp, there is an identifiable and coherent difference between the three types of government power, and the Constitution requires a clean organizational chart: the right people, doing the right activities, in the right branch.

      This theory has ascended in administrative law. The Roberts Court has aligned itself with separation-of-functions ideology, most prominently in cases concerning the nondelegation doctrine. That doctrine holds that Congress may not delegate legislative power to the Executive. Until recently, the conventional wisdom was that the nondelegation doctrine was dead, or at least on life support, lingering in the law as an avoidance canon and an academic obsession. (15) Over the last few years, however, this account has been challenged by the Court's eagerness to revive nondelegation, not just as a narrow principle of statutory interpretation but as a full-blown constitutional rule.

      At first, the revival of the nondelegation doctrine--which, its critics contended, was really its invention--was a leitmotif in debates about Chevron deference. (16) In disputes over whether courts should defer to an agency's understanding of a statute, some Chevron skeptics framed their objection in constitutional terms, as an outgrowth of anxiety about excessive delegation of lawmaking authority. In his 2015 concurrence in Michigan v. Environmental Protection Agency, (17) for example, Justice Thomas questioned the idea that statutory ambiguity constitutes an implicit grant...