inappropriate for executive adjudication undisputedly includes criminal
judgments, according to multiple scholars.196 Professor Lawson has
suggested this category likely also includes within it “the imposition of a civil
penalty or fine,” which “is very hard to distinguish from the imposition of a
criminal sentence.”197 Perhaps one more obvious extension of the principle
would be to conclude that executive adjudication is an improper forum for
imposing sanctions like suspension or a lifetime bar from a professional
practice area.198 (ii) In contrast, executive adjudication may be permissible
for matters historically resolved by executive actors like disputes over funds
owed to the government199 or the grant or denial of entitlement benefits200—
resources to which, as a historical matter, citizens had no pre-existing vested
private property right.201 Additional examples of matters listed by Professor
Lawson as appropriate for executive adjudicative resolution include (i)
notice-giving, (ii) acts involving “internal executive administration,” and (iii)
acts of coercion pursuant to duties imposed by a constitutionally legitimate
statute where those acts do not “purport to add any independent binding
authority to the statute.”202
Under this construct distinguishing between lawful and unlawful
21, at 191–92.
196. See, e.g., Lawson, Rise and Rise, supra note 19, at 1246–47; Nelson, supra note 20,
at 610, n.212. Professor Hamburger goes somewhat further and contends that any binding
administrative order or warrant is unauthorized by the Constitution—whether it is of a criminal
nature or not. See HAMBURGER, supra note 21, at 265–67. In his view, such inappropriate
administrative orders include not just the imposition of penalties or fines but even orders
requiring parties to “testify under oath” or “produce their business papers and records” for an
administrative inquiry. See id. at 228, 266.
197. Lawson, Rise and Rise, supra note 19, at 1247.
198. See supra note 167 and accompanying text.
199. See supra notes 187–93 and accompanying text. To some, the existence of this
historical practice may seem like a dubious exception to a general principle that the
government may not take private property like one’s income without judicial process. But one
key distinction in the public revenue cases is that it was not the government singling out one
property owner for some type of taking, punishment, or fine. Rather, the government had
already by law authorized the receipt of certain government funds—a principle generally
applicable to the public. See Lawson, Take the Fifth, supra note 19, at 35–36. And the elected
branches bore the political accountability of the public knowing they had passed the generally
applicable revenue law and therefore could be voted out of office for it. Also, as Professor
Lawson has observed, even executive adjudication pursuant to public revenue laws is legal
only if Congress acted properly, pursuant to one of its enumerated powers, in enacting the
revenue statute—another potential check against the unrestrained exercise of federal power.
See id. at 36–38 (analyzing whether the public revenue collection statute at issue in Murray’s
Lessee was a proper exercise of congressional power under the Necessary and Proper Clause);
Lawson, Rise and Rise, supra note 19, at 1234–35 (noting that the Necessary and Proper
Clause authorizes only “laws that ‘carry into Execution’ other granted powers”).
200. See Lawson, Rise and Rise, supra note 19, at 1246 (“[G]ranting or denying benefits
under entitlement statutes—is execution of the laws by any rational standard . . . .”).
201. See supra notes 182–86 and accompanying text.