44 Journal of Regulatory Compliance Issue II
that, at the federal level, may be resolved only by Article III judges?175
Providing an adequate answer to that question requires reliance on
extensive historical research and analysis—research that several scholars
have undertaken in significant measure.176 Part II of this essay will not revisit
this analysis in detail. But Part II will provide a brief sketch of some of the
principles set forth in this literature (i) that help to uncover the proper
dividing line between executive adjudication and the exercise of judicial
power and (ii) that demonstrate how properly limited executive adjudication
might assuage many of the partiality concerns raised by contemporary
scholars like Professor Barnett.
In particular, a starting point for this analysis might be found in the history
of the original meaning of the due process protections in the Constitution.
Professors Michael McConnell and Nathan Chapman provide a compelling
account of the original meaning of “due process of law.”177 They explain that
“due process” protections historically applied against all federal government
action taken by any of the three branches—including the legislature and the
executive.178 They contend that in contrast to modern doctrine,179 due process
“[f]undamentally... was about securing the rule of law” and “only
secondarily about notice and the opportunity to be heard.”180 (Professor Gary
Lawson recently has drafted an article suggesting the due process of law
protections in the Fifth Amendment actually were even narrower, in the sense
that they provide no restraints on federal power beyond those “already
contained in the text and structure of the Constitution of 1788.”181)
With respect to executive action, Professors Chapman and McConnell’s
research indicates that due process simply “ensured that the executive would
not be able unilaterally to deprive persons within the nation of their rights of
175. See Lawson, Rise and Rise, supra note 19, at 1246–47 (noting it can be “difficult to
identify those activities that are strictly judicial in the constitutional sense”); see also
HAMBURGER, supra note 21, at 191–225 (distinguishing between judicial acts and “[l]awful
[e]xecutive [a]cts [a]djacent to [a]djudication”—describing executive adjudication involving
non-subjects and executive adjudication regarding not-yet-vested “benefits or other
privileges” as examples of permissible executive actions).
176. See generally, e.g., Chapman & McConnell, supra note 22; Lawson, Take the Fifth,
supra note 19; Nelson, supra note 20.
177. See Chapman & McConnell, supra note 22, at 1675 (internal quotation omitted).
178. Id. at 1679, 1807.
179. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 333–35 (1975) (analyzing the type of
notice and hearing that must be provided in a given case through a multi-factor lens).
180. Chapman & McConnell, supra note 22, at 1807.
181. Lawson, Take the Fifth, supra note 19, at 1. Professor Lawson agrees that notice is
a constitutional requirement prior to any federal deprivation of life, liberty, and property. But
Lawson concludes “the bedrock requirement” of notice is such a “basic part of American law”
that “it pre-dated the Fifth Amendment’s Due Process of Law Clause, is part and parcel of
what it means to exercise ‘judicial Power,’ and did not need articulation in the Fifth
Amendment to be effective.” Id. at 17–18.