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Executive Agency Courts
Several federal adjudicatory bodies are not widely considered part of the federal judiciary because they are components of an administrative agency or executive branch department. Executive agency adjudication began to proliferate in the Progressive Era in response to calls for a more efficient process to promulgate, interpret and enforce federal regulations. More than 1,300 administrative law judges now serve in such bodies. Their powers and roles vary in keeping with the responsibilities of their agencies and departments, but most conduct hearings, issue or recommend decisions and enforce agency regulations.
The composition and nomenclature of agency tribunals varies. Some agency courts are fully integrated into the agencies whose cases they adjudicate and are bound by those agencies’ policies. Some, such as the Occupational Safety and Health Review Commission, created in 1970, and the Executive Office for Immigration Review, created in 1983, are themselves independent agencies within a federal department and are empowered to rule on decisions of other agencies.
The boundary between agency and court adjudication has not always been clear or uncontested. Congress has created independent Article I courts, such as the United States Tax Court, and Article III courts, such as the United States Customs Court, out of former agency bodies. Moreover, because individuals inevitably contested some agency rulings, Congress initially had to determine whether to facilitate review within the agencies themselves, or to allow review in traditional courts of law. Even where judicial review was statutorily or constitutionally mandated, it was sometimes unclear what degree of deference courts should pay to previous agency rulings. In 1946, Congress passed the Administrative Procedure Act (“APA”) (60 Stat. 237), which codified the rules governing administrative agencies and the process for further review in Article III courts. Subsequent decisions by the Supreme Court of the United States have generally weighed access to judicial review and agency efficiency and expertise under the APA framework.
Daniel R. Ernst, De Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (New York: Oxford University Press, 2014).
Joanna Grisinger, The Unwieldy American State: Administrative Politics since the New Deal (New York: Cambridge University Press, 2012).