Administrative Law Commons^™

Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer

Journal Articles

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.

The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization …

Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani

All Faculty Scholarship

This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies — rather than courts — assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested. These interpretations are particularly important because of their interplay with cooperative federalism — specifically, with states’ ability to exercise their traditional police power after accepting federal money.

The Article’s argument is …

Embracing Administrative Constitutionalism, Bertrall L. Ross

Bertrall L Ross

Administrative agencies engage in constitutionalism. They resolve questions of statutory meaning and scope that implicate constitutional questions. Even when agencies do not consciously set out to weigh in on constitutional

questions, by interpreting and applying statutes that rest on constitutional values, agencies elaborate constitutional meaning.

Should courts and theorists embrace or resist administrative

constitutionalism? For those who believe that the courts are the exclusive and final interpreters of the Constitution, it seems natural to oppose it. Thus, over the past forty years, the Supreme Court has resisted administrative constitutionalism. When agencies elaborate constitutional meaning in their interpretation of statutes, the …