“Is Judicial Deference to Agency Fact-Finding Unlawful?” by Professor Evan Bernick ’15

JWI Fellow Alumnus Prof. Evan Bernick ’15, in the Georgetown Journal of Law & Public Policy, examines the sparsely addressed doctrine of judicial deference to agency fact-finding, in which the Administrative Procedure Act, as well as Supreme Court precedents, have created a standard of broad deference to an agency’s findings by holding that reviewing courts may only overturn an agency’s determinations of facts when they are “unsupported by substantial evidence”. Prof. Bernick argues that this requirement—in cases only involving a deprivation of “core private rights to life, liberty, and property”—violates both “Article III’s vesting of ‘[t]he judicial power’ in the federal courts”, and a litigant’s right to due process of law ensured in the Fifth Amendment.

“Is Judicial Deference to Agency Fact-Finding Unlawful?” Excerpts:

“Just how deferential is fact deference? Recall that the ‘substantial evidence’ standard appeared in the Supreme Court’s jurisprudence before it was incorporated into the APA. As the Court put it in the 1938 case of Consolidated Edison Co. v. NLRB, substantial evidence meant more than a ‘mere scintilla of evidence’…Today, factual determinations are upheld if a reasonable agency fact-finder could have reached them, just as legislation is often upheld under the default standard of constitutional review—rational-basis review—if rational legislators could have believed that the legislation served a constitutionally legitimate end”

“(T)he history and present state of fact deference in core-private-rights cases should give us pause. Fact deference in such cases marked a break with what had been a consistent understanding of how facts should be determined and has sincespread to contexts in which its early advocates would have been appalled to find it. From the perspective of those who stand to be deprived of what is rightfully theirs, accurate factual determinations are of urgent concern—facts can be determinative of the outcome of litigation. No less than other kinds of deference that have developed more recently and attracted more critical scrutiny of late, fact deference merits careful scrutiny.”

“The original meaning of ‘[t]he judicial power’ is difficult to pin down—uses of the phrase during the Founding Era are infrequent. Yet what we do find is nicely captured by James Wilson’s description of ‘judicial authority,’ which he held to ‘consist[] in applying, according to the principles of right and justice, the constitution and laws to facts and transactions in cases, in which the manner or principles of this application are disputed by the parties interested in them.’ According to this understanding, to exercise judicial power was to decide cases involving the core private rights of individuals in accordance with the applicable law and to bind the parties to the judgment reached. That power was given through Article III to the courts—the binding character of judgments stems from the authority vested by the law in the courts. Deciding cases, in turn, entails interpreting the relevant law, ascertaining the relevant facts, and applying the law to the facts.”

“The Fifth Amendment’s Due Process of Law Clause channels adjudication in cases involving federal deprivations of core private rights to life, liberty, or property to Article III courts. Recall that federal judicial power is, subject to express and narrow exceptions, vested only in ‘one Supreme Court, and such inferior courts as the Congress may from time to time ordain and establish.’ Binding adjudication always entails the exercise of judicial power. Thus, if due process of law entails access to the courts in such cases—and it does—it entails access to Article III courts, as no other courts are vested with the power to decide them.”

“The venerable common-law maxim nemo iudex in sua causa—no man should be judge in his own case—has been affirmed throughout Anglo-American jurisprudence as a commitment to impartial adjudication and was associated with the concept of due process of law throughout the Founding Era. Impartial adjudication remains a component of our due process jurisprudence today. The promise of impartial adjudication is squarely implicated by fact deference. If agency fact finders cannot be presumed to be impartial, judges that treat their determinations as presumptively valid effectively tilt the scales of justice in favor of executive power.”