Judicial Power

From the very beginning, executive agencies have engaged in what we call adjudication, if you just think of adjudication as being applying the law to a set of facts. From the very beginning, um executive officials were deciding whether individuals had um paid the right amount of taxes or given the revenue that they owe to the government and so if we're just talking about a simple executive issue of applying the law to the facts, there certainly is a a grounding and a basis for there to be some type of executive adjudication. The question comes in when an Administrative Law Judge’s decision is strained beyond that area of just an executive matter of applying appropriately the law to the facts and when an an ALJ has been empowered to take property or liberty away from an individual and whether that determination instead should be made within an Article Three court. Administrative Law Judges have not been selected in compliance with how an Article Three judge would have to be selected. So for a federal judge who's who’s what we see as very impartial and independent, you know that individual has been appointed by the President with the consent of the Senate, they have lifetime tenure, and can only be fired through the mode of impeachment. And the reason that the Constitution has those protections in place is to make sure that there are independent decision makers who are in charge of reaching decisions that could result in the loss of rights or property or liberty for the American public. So some have questioned whether that that maybe means that ALJ shouldn't always be reaching decisions in every case that an Article Three court can reach a decision in because there just are not the protections for individual right there. At the same time, if you look historically, there certainly seems to be a role for administrative and executive adjudication to do something. So this raises a lot of complicated questions of constitutional law that that touch on not just where the accountability needs to be within Article Two, within the Executive Branch but also how does the Executive Branch interact with Article Three courts or federal trial courts.