Agency Adjudication: What Power is Invested in These Courts? [No. 86]
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Agency Adjudication: What Power is Invested in These Courts? [No. 86]

It’s probably uncontroversial, that agencies
can adjudicate, can apply law to particular facts, when they’re doling out benefits. That’s been accepted for a very long time. The more interesting question is whether you
can have agency officials dulling out fines and penalties. Are they doing it with due process of law,
simply because they hold lots of hearings, put on robes, and act like judges? Or do they actually have to be, honest to
goodness, Article Three judges to perform that? Just last year, the Supreme Court decided
a case involving a newly created agency called the PTAB. The Patent Trial and Appeal Board. This was part of a statute, the America Invents
Act, that was supposed to simplify and steam-line the patent process. In particular, the worry was that there had
been a lot of really bad patents, granted by an administrative agency, Patent and Trademark
Office, that were out there stifling innovation. The America Invents Act created this Patent,
Trial, and Appeal Board as an administrative agency. They’re called patent judges but they’re not
Article Three judges, they’re administrative officers. And what this body does, is it hears complaints
from people about supposedly lousy patents, it looks over the patents that have already
been issued and are out there, and decides whether or not to cancel them. So you have an administrative body that’s
invalidating or canceling patents that have already been issued to someone. Can they do that? If you think patents are property, the kind
of property the Fifth Amendment is talking about when it says, “don’t deprive people
of Life, Liberty, or Property without due process of law.” Then you have the question of whether you
can have an executive body, an executive agent simply making your property disappear without
going through the process of an actual honest to goodness trial in an Article Three court. There is probably not a comparable problem
with what most of the executive officials, who call themselves judges, are doing. Because most of what those people are doing
is adjudicating benefits claims- Social Security benefits, Veterans benefits, federal welfare
benefits of various kinds, right? So this, PTAB problem is a nice microcosm
of the sorts of issues that are posed when we have executive officials, not just deciding
things, they can decide lots of things, but deciding things that actually dispose of peoples’
life, liberty, or property.


  • troy cates

    I guess this is the part, where I emphatically deny being a SovCit and ask how does your "agency adjudication" differ from the first so called "quasi criminal offenses" or the enforcement municipal? ordinances and/or trying an offense in the name of a municipality.

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