48 Journal of Regulatory Compliance Issue II
executive adjudication, one would need to analyze whether a particular type
of dispute is analogous to cases that historically were subject to resolution by
independent judicial bodies.203 If so, agency adjudicators should not be
authorized today to determine the matter.204
Although this might sound like a radical claim, Professor Lawson has
observed that the matters constitutionally inappropriate for agency
adjudications under this construct are “a relatively modest subset” of present-day executive action.205 Examples from early practice seem to bear out these
principles,206 showing numerous instances in which the early Executive
Branch engaged in adjudication.
For example, the First Federal Congress established the position of
Auditor responsible for, among other things, receiving public accounts,
examining them, and certifying their balance.207 If any person with an
audited account was dissatisfied with the Auditor’s examination, that person
could “appeal to the Comptroller against such settlement.”208 According to
Justice Scalia in his concurring opinion in Freytag, the Comptroller’s
adjudication was not subject to further review by the Treasury Secretary.209
Both the Auditor and the Comptroller who reviewed the Auditor’s
adjudicative determinations210 on appeal were appointed by the President
with Senate advice and consent.211 The First Congress did not specify any
particular tenure protections for those officials;212 nonetheless they resolved
203. See generally, e.g., Nelson, supra note 20 (conducting significant historical research
to define and explicate the constitutional distinction between “core private rights” versus
“‘privileges’ or ‘franchises’”).
204. See Chapman & McConnell, supra note 22, at 1774–75 (observing that due process
of law encompasses “the settled usages and modes of proceeding existing in the common and
statute law of England, before the emigration of our ancestors, and which are shown not to
have been unsuited to their civil and political condition by having been acted on by them after
the settlement of this country” (internal quotation omitted)).
205. Lawson, Take the Fifth, supra note 19, at 25.
206. See, e.g., Freytag, 501 U.S. at 909–10 (Scalia, J., concurring) (discussing an early
example of executive adjudication within the Treasury Department where the First Federal
Congress authorized the Comptroller to give final review to challenges brought against an
Auditor’s examination and certification of public accounts).
207. MASHAW, supra note 190, at 40 (discussing An Act to Establish the Treasury
Department, ch. 12, § 5, 1 Stat. 65, 66–67 (1789)).
208. 1 Stat. at 66–67, § 5; MASHAW, supra note 195, at 40.
209. Freytag, 501 U.S. at 909 (Scalia, J., concurring) (observing that the Comptroller was
engaged in an exercise of “executive power” in reaching his determination, which was not
subject to “further review by the [Treasury] Secretary”).
210. See supra note 169 and accompanying text (observing that adjudication simply
amounts to the application of a legal standard to facts).
211. MASHAW, supra note 195, at 40; see also, e.g., 1 S. EXEC. J. 1ST CONG., 1ST SESS.
212. See 1 Stat. at 66–67, §§ 1, 3, 5; see also MASHAW, supra note 195, at 42 (noting that
“presidential appointment and removal were common to all the departments”); cf. id. at 40 and