As I write this Jot, it’s entry-level hiring season. Scores of exciting candidates are crisscrossing the country to present new papers, eat dinners, and tour campuses and neighborhoods. Over the years, I have come to observe that there are a few things that a candidate can reliably bet will occur during a job talk at my law school. Someone will point out your paper’s relevance to some completely unexpected area of law, or vice versa. Someone’s phone will ring while you are speaking—to the rest of the faculty’s collective mortification—and then be immediately, furiously silenced. And—if you are talking about a subject in constitutional law, administrative law, or federal courts—someone will probably ask you something about how your paper relates to INS v. Chadha.
Chadha is a staple touchpoint because it tees up a fundamental definitional conundrum that all three fields grapple with in various ways: what counts as executive power, or judicial power, or legislative power, in our system of government? If our legal system is one of separation of powers, it would seem to be important to know which is which. Yet, in the fashion of an ancient parable, the opinions in Chadha reach different answers concerning how to characterize the particular type of action at issue in that case. To the Court, an action by a house of Congress to veto a suspension of deportation seemed “essentially legislative in purpose and effect,” and therefore subject to bicameralism and presentment requirements. But, as Justice White pointed out, the Court’s opinion also characterized the suspension of deportation as an executive power; if that is the case, then why isn’t an action that merely blocks that suspension therefore an exercise of executive power, too? Justice Powell, for his part, saw things another way entirely: it was “clearly adjudicatory,” he wrote, for a house of Congress to decide whether or not Jagdish Chadha should or should not be deported. So Chadha was very much on my mind as I read The Executive Power of the Federal Courts, an interesting new paper by Adam Crews.
In this article, Professor Crews argues that when federal courts perform judicial review of agency action, they should at times be understood to be acting as arms or extensions of the administrative process itself. In these domains, imposing a requirement that federal courts act within the parameters of Article III is the wrong move, for the courts are exercising not just Article III power but executive power, too. Professor Crews’s goal is ambitious: “to free administrative law from the rigid view that everything a federal court does is—and perhaps must be—an exercise of judicial power.” (P. 10.)
Professor Crews begins by tracing historical examples of Congress enlisting federal courts to perform “what we today we think of as paradigmatic administrative tasks.” (P. 27.) Over our history, federal courts have adjusted citizenship status, assessed monetary benefits, granted patents and licenses, and settled legal disputes between agencies. (P. 27.) Today, those functions are often performed by agencies: the USCIS, the VA, the PTO, and the OLC, respectively. (P. 27.) In each of these historical contexts, he notes, the federal courts were enlisted to act in ways that fit uncomfortably with conventional wisdom concerning Article III: “[n]aturalization and monetary claims adjustments lack adverse parties; interagency litigation lacks adverse legal interests,” (P. 27), and review statutes in the late 19th and early 20th centuries gave federal courts—or at least the D.C. Circuit—“sweeping policy discretion” to revise agency action, not just to determine its legality. (Pp. 20–24.) This lengthy record of federal courts exercising “non-judicial governmental power,” Professor Crews points out, is very much at odds with the model of “traditional judicial adjudication” under which courts ascertain facts and apply the law in a case between two adverse parties. (P. 27.)
The article next contends that such exercises of power by federal courts should be understood as exercises of executive power, not as exercises of judicial power—and, moreover, that they are legitimate exercises of executive power. Drawing on Enlightenment-era philosophy and Founding-era sources, inter alia, Professor Crews contends that the core domain of judicial power is the power to divest or alter vested private rights and interests. (P. 29.) This power, though formidable, is narrow: it does not include, for example, the power to administer benefits (such as patents) or statuses (such as citizenship) by reference to statutory law. When courts do those things, they are playing a “law execution” role rather than an “interest adjudication” role. (P. 13.)
And Congress has the authority under the Necessary and Proper Clause, Professor Crews contends, to assign courts to perform such (executive or administrative) tasks as long as four conditions are met: a statute so provides; the task does not diminish or divest previously vested rights or interests; the task does no more than ask the court to resolve questions of law on a closed record; and the court’s decision is not subject to revision by the political branches. (P. 49.) That is so, he argues, because constitutional propriety is properly informed by longstanding political practices, including the practice of assigning executive tasks to federal courts. (Pp. 42–44.)
This executive power model, he goes on to note, would explain the legality of special statutory review schemes such as the Hobbs Act, which allow litigants to seek pre-enforcement review of agency rules on a closed record and to win sweeping remedies against such rules. (Pp. 50, 63.) Professor Crews argues that such a scheme should be seen as drawing on the federal courts’ executive power, rather than treated as having to rest solely on their Article III judicial power; so understood, they are constitutionally proper, including as to remedies. (Pp. 53, 62–63.) Whether or not the executive power model is necessary to underwrite the legality of special statutory review schemes, it is certainly a thought-provoking new justification for their legality.
The remainder of Professor Crews’s article unpacks the implications of his executive model of judicial power for a variety of issues at the intersection of federal courts and administrative law—among them, state standing to challenge agency action, FOIA standing, Chevron deference, remedial scope, certiorari before judgment, and military justice appeals. (Pp. 54–67.) He also discusses how his model might inform ongoing debates between formalists and functionalists. (Pp. 68–70.) While the balance of the discussion resists easy summary, it draws a variety of interesting connections and fairly makes several insightful points that readers will enjoy mulling over. The article’s lively engagement with numerous ongoing, pressing debates in administrative law, federal courts, and remedies is a great strength.
Apropos of that last point: reading Professor Crews’s paper suddenly called up a vivid memory from my own experience as an entry-level job applicant crisscrossing the country in a rumpled suit. A distinguished faculty member at a highly regarded law school quickly skimmed my CV as he sat down for a small-group interview with me. “So what are your interests?” he asked. I answered truthfully (if a bit recklessly): federal courts; civil procedure; administrative law—and certain facets of criminal law and health care law. “Oh, is that all?” he huffed, one eyebrow arched. Well, I understood why he said that, as well as the frosting of sarcasm with which he said it. Sometimes, though, it’s hard to fit everything into a neat and tidy box. That goes for people. It goes for papers—like Professor Crews’s cross-cutting, cross-pollinating article. And, last if not least, as Chadha is always there to remind us, it goes for powers, too.
