interbranch Appointments Clause entity, a court of law. 26 Part II then briefly
sketches some of the potential implications of legal scholarship analyzing
separation of powers issues related to agency adjudication. Based on that
scholarship, this part of the essay suggests: When limited to adjudicating
issues properly before the Executive Branch pursuant to law, 27 adjudication
by executive-appointed agency officers raises neither due process of law28
nor Article III concerns. 29 But when agency adjudicators stray outside the
proper limits of executive adjudication such as by depriving individuals of
vested property rights, 30 they must not serve even as fact-finders subject to
judicial deference. 31 All cases and controversies subject to the federal
judicial power32—or parts of those cases and controversies—must be
evaluated and determined by Article III judges with salary and lifetime tenure
protection. 33 The Constitution’s Vesting Clauses34 and carefully delineated
26. See Amar, supra note 24, at 804–12 (1999) (concluding that “[w]hen Congress
chooses to allow unilateral appointment of an ‘inferior’ officer, without the special check and
safeguard of Senate confirmation, it must vest the power to appoint the ‘inferior in his or her
superior. The superior appointing authority must have broad power to direct or to countermand
the decisions of the subordinate.”).
27. See infra notes 182–205.
28. U.S. CONST. amend. V; see also Lawson, Take the Fifth, supra note 19, at 4
(contending that “the Fifth Amendment’s Due Process of Law Clause” would not present a
separate constitutional hurdle for agency adjudication in any event, because “the clause itself
is irrelevant to the Constitution’s original interpretative meaning” as it “adds virtually nothing
to, and subtracts nothing from, the meaning of the Constitution of 1788”).
29. See Lawson, Rise and Rise, supra note 19, at 1246 (“Agency adjudication is therefore
constitutionally permissible under Article III as long as the activity in question can fairly fit
the definition of executive power . . . .”).
30. See Chapman & McConnell, supra note 22, at 1726–27 (observing that “depriv[ing]
specific persons of liberty or vested property rights” required the protections of a common law
31. See Evan D. Bernick, Is Judicial Deference to Agency Fact-Finding Unlawful?,
forthcoming GEO. J. OF L. & PUB. POL’Y (May 2017 manuscript, at 2–3, online at
https://ssrn.com/abstract=2967320); Lawson, Rise and Rise, supra note 19, at 1247–48
(positing that judicial deference to agency fact-finding “arguably fails to satisfy Article III”
and thus Article III likely “requires de novo review, of both fact and law, of all agency
adjudication that is properly classified as ‘judicial’ activity”); Nelson, supra note 20, at 590–
92 (describing “‘adjudicative facts’” regarding “core private rights” that courts historically
had to resolve). Cf. N. Pipeline Constr. Co., 458 U.S. at 77–78 (plurality opinion) (identifying
Crowell v. Benson, 285 U.S. 22 (1932), as the first Supreme Court case to uphold “[t]he use
of administrative agencies as adjuncts” engaged in fact-finding, similar to the function played
by “a jury or a special master” (internal quotation omitted)).
32. U.S. CONST. art. III, § 2.
33. Id. § 1 (giving lifetime tenure protection to Judges “during good Behaviour” and
establishing that Judges’ Compensation “shall not be diminished during their Continuance in
34. See U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President
of the United States of America.”); id. art. III, § 1 (“The 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.”); see also U.S. CONST. art. II, § 3 (“[H]e shall take Care