4 ms·

Administrative law "judges" are unconstitutional.

SllX 3y ago
That hasn’t been determined, and while they’re sometimes controversial, I’m not sure they are unconstitutional as long as there’s a path to appeal to Article III courts. Just as a point of reference, military tribunals and immigration courts also fall outside of Article III as well.
- agensaequivocum 3y ago
  [flagged]
  - lolinder 3y ago
    5 U.S.C. § 3105 pretty clearly creates a set of administrative law judges under each agency. The decisions reached by these agencies can be appealed in a federal court, making them ultimately inferior to the Supreme Court. What about this setup violates the clause you quoted? https://www.law.cornell.edu/uscode/text/5/3105 https://www.law.cornell.edu/uscode/text/5/3105
  - tremon 3y ago
    I see a lot of handwaving and very little substance. Can you make a direct, explicit argument please?
    - lokar 3y ago
      [flagged]
MR4D 3y ago
For those who may not understand your comment, this is a summary of the issue at hand here [0] and some commentary here [1]. [0] - https://wp.nyu.edu/compliance_enforcement/2023/06/12/ftc-diminishes-role-of-administrative-law-judge/ https://wp.nyu.edu/compliance_enforcement/2023/06/12/ftc-dim... [1] - https://ogletree.com/insights/supreme-court-ruling-questions-constitutionality-of-ftcs-and-secs-administrative-adjudications-processes-is-osha-next/ https://ogletree.com/insights/supreme-court-ruling-questions...
- eli 3y ago
  Conservatives hate the administrative state and want to destroy it. They would prefer the free market solve all problems instead of regulators like the SEC or FTC or EPA. The Federalist Society has been workshopping this fringe theory that Congress isn't allowed to delegate enforcement decisions to federal agencies and that administrative judges are somehow unconstitutional. This was an unsuccessful (!) argument against the New Deal, but now thanks to a far-right Supreme Court it's a live issue again. Can you imagine if Congress had to vote on whether to punish Intuit for misleading ads? It would obviously result in the effective end of entire categories of regulation.
  - nickff 3y ago
    Have you looked at the statistics on how ALJs rule, and how long they take to do it? The “administrative law” system is extremely Kafka-esque.
    - eli 3y ago
      Have you looked at statistics on how criminal juries rule? I don't find that a convincing argument.
    - mrguyorama 3y ago
      A system working poorly doesn't make it unconstitutional. It also doesn't prevent it from being slightly modified to work well.
      - JumpCrisscross 3y ago
        > system working poorly doesn't make it unconstitutional Due process and equal protection.
  - jjtheblunt 3y ago
    what does "workshopping" mean here?

SllX 3y ago

That hasn’t been determined, and while they’re sometimes controversial, I’m not sure they are unconstitutional as long as there’s a path to appeal to Article III courts. Just as a point of reference, military tribunals and immigration courts also fall outside of Article III as well.

agensaequivocum 3y ago
[flagged]
- lolinder 3y ago
  5 U.S.C. § 3105 pretty clearly creates a set of administrative law judges under each agency. The decisions reached by these agencies can be appealed in a federal court, making them ultimately inferior to the Supreme Court. What about this setup violates the clause you quoted? https://www.law.cornell.edu/uscode/text/5/3105 https://www.law.cornell.edu/uscode/text/5/3105
- tremon 3y ago
  I see a lot of handwaving and very little substance. Can you make a direct, explicit argument please?
  - lokar 3y ago
    [flagged]

MR4D 3y ago

For those who may not understand your comment, this is a summary of the issue at hand here [0] and some commentary here [1]. [0] - https://wp.nyu.edu/compliance_enforcement/2023/06/12/ftc-diminishes-role-of-administrative-law-judge/ https://wp.nyu.edu/compliance_enforcement/2023/06/12/ftc-dim... [1] - https://ogletree.com/insights/supreme-court-ruling-questions-constitutionality-of-ftcs-and-secs-administrative-adjudications-processes-is-osha-next/ https://ogletree.com/insights/supreme-court-ruling-questions...

eli 3y ago
Conservatives hate the administrative state and want to destroy it. They would prefer the free market solve all problems instead of regulators like the SEC or FTC or EPA. The Federalist Society has been workshopping this fringe theory that Congress isn't allowed to delegate enforcement decisions to federal agencies and that administrative judges are somehow unconstitutional. This was an unsuccessful (!) argument against the New Deal, but now thanks to a far-right Supreme Court it's a live issue again. Can you imagine if Congress had to vote on whether to punish Intuit for misleading ads? It would obviously result in the effective end of entire categories of regulation.
- nickff 3y ago
  Have you looked at the statistics on how ALJs rule, and how long they take to do it? The “administrative law” system is extremely Kafka-esque.
  - eli 3y ago
    Have you looked at statistics on how criminal juries rule? I don't find that a convincing argument.
  - mrguyorama 3y ago
    A system working poorly doesn't make it unconstitutional. It also doesn't prevent it from being slightly modified to work well.
    - JumpCrisscross 3y ago
      > system working poorly doesn't make it unconstitutional Due process and equal protection.
- jjtheblunt 3y ago
  what does "workshopping" mean here?