Steven Calabresi: Administrative Agencies and the Federal Judiciary
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Steven Calabresi: Administrative Agencies and the Federal Judiciary


Currently, administrative law judges are executive
branch civil service bureaucrats who are hired by the administrative agencies themselves
and who initially hear lawsuits that are brought challenging an agency regulation. And their decisions can be appealed to the
agency and then the agency’s decision can be appealed to federal courts of appeals,
but only under a very deferential standard of review. But I think when the government is taking
away life, liberty or property, then an Article III judge is required. This is an idea that is as old as Magna Carta. Um, Magna Carta was a petition signed by King
John of England in 1215, when all of his bishops and subjects rebelled against him. And Article 39 of Magna Carta says that “No
man shall be deprived of life, liberty, or property except by the law of the land, or
by the judgment o- of his peers.” And the judgment of his peers means a trial
by jury. And the due process clause of the f- Fifth Amendment
and the Fourteenth Amendment captures the Magna Carta idea, which is now more than e- 800
years old and it says, “No person shall be deprived of life, liberty or property without
due process of law.” And I argue that those judges have to be nominated
by the President and confirmed by the Senate, and that’s a huge change from the way we’ve
done things since the 1930s. But I think it would make the agencies really
independent and render them constitutional in the way that they are not presently constitutional.

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