life, liberty, or property except as provided by common law or statute and as
adjudicated by independent judicial bodies.”182 Professors Chapman and
McConnell continue on to explain in detail the kinds of individualized acts
that legislatures, for example, could take apart from the due process
requirement of an independent judicial determination—and those they could
not, absent a historical, lawful practice to the contrary.183
This line between permissible legislative acts versus acts requiring
independent judicial resolution is a useful analogue for evaluating which
types of issues are appropriate for agency adjudicative resolution and which
are not. For example, as a historical matter, Professors McConnell and
Chapman explain that Congress could enact “private statutes” not
“depriv[ing] anyone of life, liberty, or property.”184 In contrast, “
quasi-judicial” acts that generally were impermissible unless subject to judicial
resolution included: (i) taking private property from one party and giving it
to someone else; (ii) taking land for a public use without proper
compensation, (iii) revising land charters or revoking land grants, and (iv)
reducing “procedural protections for a small class of citizens.”185
Cases involving such deprivations or transfers of life, liberty, or property
constitute a “core” of cases that, when considered at the federal level, must
be resolved by Article III courts—not executive adjudicators “dressed up as
courts.”186 Matters, on the other hand, that may in fact be appropriate for
resolution by agency adjudicators include governmental grants of privileges
or benefits187 or issues historically adjudicated without the use of traditional
common law judicial procedures.188 Professors McConnell and Chapman
182. Chapman & McConnell, supra note 22, at 1807.
183. See id. at 1734–35, 1774–75.
184. Id. at 1734 (internal quotation omitted).
185. Id. at 1755–68.
186. See id. at 1802–04, 1807. Professor Lawson also has articulated a similar standard
based on Professor Philip Hamburger’s landmark book—Is Administrative Law Unlawful? In
a review of the book, Lawson praises Hamburger’s observation of “the crucial distinction
between executive acts that purport to bind subjects and executive acts that purport merely to
instruct executive agents or exercise coercion against non-subjects.” Gary Lawson, The
Return of the King: The Unsavory Origins of Administrative Law, 93 TEX. L. REV. 1521, 1524
(2015). Specifically, Professor Lawson notes, “[ I]t is only the former kind of executive
actions—attempts by the executive, with or without statutory authorization, to constrain
subjects—that raises constitutional problems of adjudication outside of Article III . . . .” Id.
187. See HAMBURGER, supra note 21, at 191 (observing that “the core of judicial power”
historically was reserved “exclusively to the courts” but “did not include decisions about
government benefits or privileges, unless they had ‘vested’ and become rights”).
188. See Chapman & McConnell, supra note 22, at 1803–04 (finding that it is permissible
for the executive to adjudicate matters outside the traditional common law judicial process if
it is rooted in longstanding British practice that the Constitution and early American practice
had not changed); id. at 1804 (“An Article III judge is required in all federal adjudications,
unless the text and historical practice of the Constitution expressly or implicitly give Congress
the power to authorize them.”).