Indiana Law Review


Executive Branch Adjudications in Public Safety
Laws: Assessing the Costs and Identifying the

Benefits of ALJ Utilization in
Public Safety Legislation

Christopher B. McNeil*

It is something to show that the consistency of a system requires a
particular result, but it is not all. The life of the law has not been logic:
it has been experience. The felt necessities of the time, the prevalent
moral and political theories, intuitions of public policy, avowed or
unconscious, even the prejudices which judges share with their fellow-

men, have had a good deal more to do than the syllogism in determining
the rules by which men should be governed.^

—Oliver Wendell Holmes, Jr.
I. Introduction and Premises

Among the powers of the legislative branch is the power to create inferior
courts.^ In the exercise of this power, Congress not only establishes courts of the

judicial branch, but also from time to time invests in the executive branch the

power to adjudicate a wide range of issues, including many that are closely
related to public safety. In this process of delegation, the legislative branch cedes

to the executive branch real judicial power: it transfers to the executive branch not

only the authority to adjudicate, but also the responsibility to ensure fair

treatment of all whose cases are brought to the forum. This delegation, in turn,
is replicated throughout the nation in state and local governments, forming a

complex fourth branch of government that is heavily dependent upon public trust

* Legal Writing Instructor and Adjunct Professor, Capital University Law School. B.G.S.,
1978, J.D., 1981, University of Kansas; Master of Judicial Studies, 2004, University of Nevada

—

Reno. The author would like to thank Dr. Elizabeth Francis, University of Nevada—Reno, for her
help in developing the theories and approach employed in this Article. This Article was written

in partial fulfillment of the requirements for the Master of Judicial Studies degree program at the

University of Nevada—Reno and in association with the National Judicial College. My thanks to
the members of the Master's Committee that reviewed this thesis: Dr. Elizabeth Francis, the Hon.
John Hardwicke, and the Chair ofthe Judicial Studies Program at the University ofNevada—Reno,
Dr. James Richardson. This research was supported in part by a grant from the Association of

Legal Writing Directors, and its core thesis was first presented before the Program on Law and
State Government Fellowship Symposium, Maximizing Judicial Fairness and Efficiency: Should

Indiana Consider Creating an Office ofAdministrative Hearings, October 1, 2004, at the Indiana

University School of Law—Indianapolis. Although the author is a sitting administrative hearing
examiner for the State of Ohio, the opinions expressed herein are his own and do not reflect the
endorsement of any governmental agency, nor of the members of the JSP Master's Committee, the
National Judicial College, the University of Nevada, Indiana University School of

Law—Indianapolis, nor the Association of Legal Writing Directors.
1. OuvER Wendell Holmes, Jr., The Common Law 5 (Mark DeWolfe Howe ed..

Harvard University Press 1963) (1881), quoted in JOHN MONAHAN & LAURENS WALKER, SOCIAL
Science in Law 2-3 (5th ed. 2002).

2. U.S. Const, art. Ill, § 1.



436 INDIANA LAW REVIEW [Vol. 38:435

and confidence in the abilities of the executive branch adjudicators to provide a

fair hearing to all participants.

In the aftermath of the attacks on the United States on September 11, 2001

("9/11"), the executive and legislative branches of government have begun to

reevaluate how to better protect the public. Through legislative initiatives like the
USA PATRIOT Act^ and the Homeland Security Act/ and through executive
orders and regulatory changes, the federal government has begun the process of

examining weaknesses in our public safety systems, and has inspired like action

in state and local governments nationwide. Inevitably, with these reassessments

will come a need for innovations in the manner by which governments treat those
responsible for making threats to our public safety, and to those who may be
accused of making such threats.

This Article examines changes in executive adjudication, primarily at the

state level, in the wake of the attacks of 9/1 1 . It takes as its first premise the idea
that lawmakers have reacted to the attacks by transferring substantial judicial

power to the executive branch, in order to grant to the executive (Governor or

President) additional resources to preempt threats to our national security, at all

levels of government. Through an examination of federal and state legislation

implemented in reaction to the attacks, the Article proposes that this genre of

legislation recognizes that the administrative and executive power of government

can be an effective and very efficient means of providing prompt and meaningful

process in legislative schemes designed to provide homeland security.

Its second premise is that while the executive branch is capable of providing

all process that is due (and then some), among the various administrative law
systems there are significant differences in the amount of protection these systems

provide against governmental overreaching. Executive adjudication systems like

the central panel of administrative law judges, for example, vary widely in key

components—such as the level of independence attributed to the adjudicator and
the institutional structure used to provide adjudicative services. This Article

suggests that these vaiiations may make a significant difference in public
confidence in the administrative law system, particularly where citizens are

required to surrender long-held constitutional protections, such as those guarding

against unwarranted searches and seizures, the ability to confront one's accusers,

and access to an impartial adjudicator when faced with threats to protected liberty
or property interests.

The third premise of the Article is intertwined with its goal: in order for
lawmakers to craft effective adjudication measures that use the executive branch

as adjudicator, care must be taken to select those administrative systems that

foster public confidence while still serving the administration effectively and

efficiently. Threats to public safety in the United States must be addressed at all

stages: in advance of the threat, during any emergent situation, and after the fact.

3

.

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept

and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, Pub. L. No. 107-56, 115 Stat. 272

(codified in scattered tides and sections of the U.S.C.) [hereinafter USA PATRIOT Act].
4. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified in

scattered sections of 6 U.S.C.) [hereinafter Homeland Security Act of 2002].



2005] EXECUTIVE BRANCH ADJUDICATION 437

At each stage administrative processes will play an ever-increasingly important

role in law enforcement and homeland security. Striking a proper balance

between individual liberty and public safety will require that lawmakers identify

the administrative processes most likely to win public support. That balance will

be achieved only by carefully crafting highly responsive and adaptive

administrative adjudication systems designed to ensure prompt and effective

hearings in a manner consistent with our national legacy of affording due process

to all.

11. Retooling Adjudicative Roles in the Wake of 9/11

Shortly after the terrorist attacks against the United States on 9/1 1 , lawmakers

throughout the country responded by examining a wide range of public safety

systems. Their search was intended to detect weaknesses in threat detection,

border insecurity, and any number of public safety systems that were weak
enough to allow enemy assailants into the United States. Government
surveillance tools were sharpened and executive authority to gather information

was exponentially expanded through the USA PATRIOT Act. Border security,
immigration, transportation regulation, and banking quickly became the focus of
measures designed to enhance our nation's security infrastructure. At the state

and local level, lawmakers quickly enacted legislation designed to provide for

public safety in the event of additional attacks, while at the same time enacting

legislation complementary to the federal legislative initiatives.

In these schemes, there is a conscious and deliberate effort to shift both

decision-making and fact-finding power to the executive branch. This shift

makes sense: the executive branch has long been entrusted with decision-making

powers, and administrative process anticipates that the exercise of such powers

should, generally, be conducted through an open and adversarial process, such as

through "some kind of hearing."^

A. Identification ofJudicial Power in the Executive Branch

Because the tools used most by these executive branch decision-making

offices are also used in the judicial process—including notice of charges, an
opportunity to be heard, the right to have counsel present, etc.—the process is
characterized as quasi-judicial. As the Supreme Court observed in the context of
proceedings under the federal Administrative Procedure Act,

[t]here can be little doubt that the role of the modem federal hearing
examiner or administrative law judge within this framework is

"functionally comparable" to that of a judge. His powers are often, if not

generally, comparable to those of a trial judge: He may issue subpoenas,
rule on proffers of evidence, regulate the course of the hearing, and make
or recommend decisions.^

5. Henry J. Friendly, "Some Kind of Hearing, " 123 U. Pa. L. Rev. 1267, 1267 (1975)

(quoting Wolff V. McDonnell, 418 U.S. 539, 557-58 (1974)).

6. Butz V. Economou, 438 U.S. 478, 513 (1978) (citing 5 U.S.C. § 556(c) (1976)).



438 INDIANA LAW REVIEW [Vol. 38:435

But true judicial power is not so freely granted; indeed, such power is intended

to be largely confined, subject to restraint in the form of the requirements of

separate functions of government from executive, to legislative, to judicial.

While Congress has the power to create inferior courts and make judicial
appointments, the Constitution imposes important limits to such power. By
limiting this power, the Framers "could ensure that those who wielded it were
accountable to political force and the will of the people."^ This power of
appointment is necessarily concentrated, as a means of preserving the democratic

force necessary to a three-part government: "The Appointments Clause prevents

Congress from distributing power too widely by limiting the actors in whom
Congress may vest the power to appoint. The Clause reflects our Framers'
conclusion that widely distributed appointment power subverts democratic

government."^

Thus, we see that when Congress delegates to the executive branch a judicial
power, it must do so cognizant of the need to maintain accountability through the

democratic process. In Freytag v. Commissioner, the Court examined the

creation of the United States Tax Court,^ which permitted the court's Chief Judge

to appoint inferior "special trial judges." Against a challenge that the assignment

of complex tax cases to such a judge violated the Appointments Clause of the

Constitution,'^ the Court observed that the power delegated by Congress to this

court was indeed judicial: "Our cases involving non-Article III tribunals have

held that these courts exercise the judicial power of the United States."' ' Unlike

typical administrative adjudicative bodies, however, the Tax Court's "exclusively

judicial role distinguishes it from other non-Article III tribunals that perform

multiple functions and provides the limit on the diffusion of appointment power

that the Constitution demands."'^ The Tax Court's decisions are reviewed by the
court of appeals and not, as in the case of appeals taken under the federal

Administrative Procedure Act (APA), by the district court, and are subject to a

standard of review different from that applicable under the APA: the court of
appeals reviews Tax Court decisions "in the same manner and to the same extent

as decisions of the district court in civil actions tried without a jury."'^

Freytag makes clear that a key component of congressional delegation of

judicial authority is whether the authority granted is judicial in nature. The Court
explained this power thus: "[t]he Tax Court exercises judicial, rather than

executive, legislative, or administrative power. It was established by Congress

to interpret and apply the Internal Revenue Code in disputes between taxpayers
and the Government. By resolving these disputes, the court exercises a portion

7. Freytagv.Comm'r, 501 U.S. 868, 884(1991).

8. /J. at 885.

9. Tax Reform Act of 1969, Pub. L. No. 91-172, § 951, 83 Stat. 487, 730 (codified as

amended at 26 U.S.C. § 7441 (1988)).

10. U.S. Const, art. II, § 2, cl. 2.

11. Freytag, 5Q\ U.S. at 889.

12. /J. at 892.

13. 26 U.S.C. § 7482(a)(1) (2000).



2005] EXECUTIVE BRANCH ADJUDICATION 439

of the judicial power of the United States."'"^ Noted also is the absence of any

competing role: it is "neither advocate nor rulemaker. As an adjudicative body,
it construes statutes passed by Congress and regulations promulgated by the

Internal Revenue Service. It does not make political decisions."'^ Thus, we
know that in the exercise of these decision-making powers, a process is judicial
in nature if it resolves disputes between the government and the governed by

construing applicable authorities through an adjudicative process that is

structurally separated from roles of advocacy or rulemaking.

B. The ''Judicial" Nature ofPost-9/1 1 Delegations

Drawing upon the definition of judicial power from Freytag, the legislative

initiatives taken after 9/11 warrant some study. Notably, have lawmakers
transferred judicial power to the executive branch in an effort to strengthen the

hand of the executive officer? Has Congress given the President power to engage

in a deliberative and adjudicative process that until this point was within the

province of the judicial branch? And if so, have appropriate checks and balances
been built into the new structures to provide for the integrity of the newly
configured adjudication systems?

The abrogation of a judicial role in favor of a role by the executive branch is
unmistakable in Military Order of November 11, 2001, Detention, Treatment and
Trial of Certain Non-Citizens in the War Against Terrorism ("the Order"). ^^ By
this Order, the President "suspend[ed] the rights of indictment, trial by jury,

appellate relief and habeas corpus for all non-citizen persons accused of aiding

or abetting terrorists." ^^ The Order anticipates the creation of military
commissions that will try suspected terrorists, and only the Secretary of Defense

will sit in review of the final decisions of these commissions.^^ Similarly, in the

USA PATRIOT Act, the Attorney General is directed to take into custody "any
alien that he has 'reasonable grounds to believe' is 'engaged in any other activity

that endangers the national security of the United States.
'"^^

Instead of using

established immigration procedures, "[i]f an immigrant is detained for purposes

related to immigration under this provision, there is no statutory or constitutional

authority to control the length of the detention. This has frequently resulted in the

indefinite detention of non-resident foreigners in U.S. detention facilities and

prisons with no remedy."^^

14. Fre>'mg, 501 U.S. at 890-91.

15. Mat 891.
16. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,

66 Fed. Reg. 57,833 (Nov. 13, 2001) [hereinafter Detention of Non-Citizens].

17. John W. Whitehead & Steven H. Aden, Forfeiting "Enduring Freedom "for "Homeland
Security ": A Constitutional Analysis ofthe USA PATRIOTAct and the Justice Department 's Anti-

Terrorism Initiatives, 51 Am. U. L. Rev. 1081, 1 1 18 (2002).

18. Id. at 1 1 19 (citing Detention of Non-Citizens, supra note 16, at 57,836).

19. Id. at 1 126 (citing USA PATRIOT Act § 412, 8 U.S.C. § 1226a (Supp. II 2002)).
20. Mat 1127.



440 INDIANA LAW REVIEW [Vol. 38:435

Perhaps more closely akin to traditional administrative process, the Attorney
General has the authority under the USA PATRIOT Act to seize assets without
due process, upon determining that the property belongs to someone whom the
Attorney General determines "has planned, authorized, aided, or engaged in such
hostilities or attacks against the United States."^^ This authority, according to the

Attorney General, is designed to permit the government to "follow the money,"

and to do "more than a freeze. We must be able to seize."^^ The statute's terms
"do not grant judicial review for these seizures, and any judicial review of a
determination based on classified information will be conducted ex parte."^^

C. State-Based Legislation in Response to 9/11

Largely following the lead of the Homeland Security Act,^"^ states have taken
legislative action focusing on information and infrastructure protection,

transportation security, science and technology, and emergency response.

According to Professor O'Reilly, each state has laws in effect for civil defense

and emergency preparedness, and all but three as of 2002 were participants (to
varying degrees) in the Emergency Management Assistance Compact
("EMAC").^^ The EMAC is an interstate compact designed to provide the means
for states to share resources and information in time of emergency, "whether

arising from natural disaster, technological hazard, man-made disaster, civil
emergency aspects of resources shortages, community disorders, insurgency, or
enemy attack."^^ Basing its actions upon legislative findings that there is a need
for "intergovernmental planning and programming at the state level," shortly after
the attacks of 9/11, the District of Columbia, for example, joined the forty-eight

states that are now members of the EMAC.^^
Law enforcement schemes were broadly reexamined by the states in the

aftermath of the attacks, with a particular eye towards public safety enforcement

programs. Minnesota Commissioner of Public Safety, Rich Stanek, summarized
that state's efforts to address gaps in the regulation of transportation and licensing

that seemed to contribute to shortfalls in homeland security. Commissioner

Stanek identified licensing weaknesses which surfaced after the attacks:

In the weeks and months before September 1 1 , local law enforcement in

various states had contact with several of the hijackers. Unfortunately,

21. USA PATRIOT Act, § 106, 50 U.S.C.A. § 1702(a)(1)(C) (West 2002).
22. Whitehead & Aden, supra note 17, at 1 1 28 (quoting HomelandDefense Before the Senate

Comm. on the Judiciary, 107th Cong. (2001)) (written testimony of the Hon. John Ashcroft,

Attorney General)).

23. Id (citing USA PATRIOT Act § 106, 50 U.S.C.A. § 1702(c)).
24. Jonathan Thessin, Recent Development, Department ofHomeland Security, 40 Harv. J.

ONLegis. 513, 513(2003).

25. James T. O'Reilly, Planningfor the Unthinkable: Environmental Disaster Planning in

an Age of Terroristic Threats, 9 WiDENER L. Symp. J. 261, 270 (2003).

26. Emergency Management Assistance Compact, Pub. L. No. 104-321, § 1, 1 10 Stat. 3877,

3877(1996).

27. D.C. Code A>fN. §§7-2331,7-2332(2001).



2005] EXECUTIVE BRANCH ADJUDICATION 44

1

law enforcement did not know whom they were deahng with because of
a failure to use technology. Consider the following three examples:

(1) In July 2001, Mohammed Atta, considered the leader of the
September 1 1 hijackers, was stopped by police in Tamarac, Florida, and

ticketed for an invalid license. Atta ignored the ticket and a bench

warrant was issued for his arrest. When Atta was stopped again for
speeding a few weeks later in a nearby town, neither his warrant nor the

fact that he was on a CIA "watch list" came up on the police officer'

s

squad car computer. Atta was released with only a warning.

(2) In August 2001, Hani Hanjour, who was aboard the airliner that
crashed into the Pentagon, was stopped for going 50 miles per hour in a
30 miles-per-hour zone. Police released Hanjour with only a traffic

ticket because they did not know he had entered the United States on a
student visa, failed to provide INS officials with a valid address, and
never actually attended any classes.

(3) Just two days before the September 1 1 attacks, Ziad Samir Jarrah,

believed to have piloted the airplane that crashed into the field in

Pennsylvania, was pulled over by Maryland state troopers for going 90
miles per hour in a 65 miles-per-hour zone. Jarrah gave officers a valid

driver's Ucense but with an invalid address. Again, the police officer did

not know that Jarrah was on a CIA watch list. The officer simply let the
eventual terrorist go on his way. After September 1 1, the car that Jarrah

was driving was found parked at the Newark, New Jersey, airport.
Jarrah' s speeding ticket was still in the glove compartment.^^

The adjudicative tasks relevant to these three examples, including the
adjudication of minor traffic citations, frequently fall to administrative law

judges. Even before 9/11, state traffic schemes ceded to the executive branch
fact-finding responsibilities over minor traffic cases. Given the ubiquity of

administrative processes affecting driver licensing, it would seem inescapable that
administrative adjudicators will at some point be responsible for making initial
findings of fact concerning the rights of drivers who may come under increased
scrutiny based on post-9/11 legislation. If, as Commissioner Stanek writes,

"[i]nformation is the most valuable weapon the United States can possess in the
War on Terrorism,"^^ then it would seem likely that at one or more points in the
processing of such information an executive branch adjudicator will be among
those who are responsible to appreciate the import of such information.

In another example, improving communication among adjudicators in sister
states is a large part of the goal of the Driver License Compact (DLC) and
Nonresident Violator Compact (NRVC), which are agreements between the states
to promote highway safety by sharing and transmitting driver and conviction

information.^^ These acts, like the EMAC, recognize state and local

28. Rich Stanek, Essay on Terrorism: Minnesota Responds to the Clearand Present Danger,

29 Wm. Mitchell L. Rev. 739, 741-42 (2003).
29. Mat 742.
30. See, e.g., OfflORev. CODEAnn. § 4510.61 (Anderson 2004) (driver license compact) and



442 INDIANA LAW REVIEW [Vol. 38:435

responsibilities in information sharing, responsibilities that would have proved
highly relevant in responding to the kind of threats posed by the three suspected
terrorists described by Commissioner Stanek.

In addition to enacting legislation that recognizes the need to cooperate

among sister states, many states have enacted laws recognizing the innovations
wrought by the Homeland Security Act.^^ For example, Colorado recently
enacted legislation that requires its Office of Preparedness, Security and Fire

Safety to "create and implement terrorism preparedness plans."^^ Among several
legislative changes made in the wake of 9/1 1 , New York made it a crime to
engage in "money laundering in support of terrorism."^^ Vermont recently
enacted legislation to

provide the state with tools to protect it and its citizens against terrorism,

to allow Vermont to cooperate with other states and the federal
government to prevent acts of terrorism, and to achieve these goals

without infringing upon the constitutional and civil rights which make
both our nation and our state so worth defending.^"^

Louisiana responded by investing additional power not only in the Governor,
but also locally with the parish presidents. Louisiana Revised Statute § 29:722

(2004), designates the state military department as the state's homeland security

and emergency preparedness agency and authorizes the creation of local

organizations for emergency preparedness. This confers upon "the Governor and
upon the parish presidents the emergency powers provided in this chapter" to
"reduce vulnerability of people and communities of this state to damage, injury,

and loss of life and property resulting from natural or man-made catastrophes,
riots, acts of terrorism, or hostile military or paramilitary actions" and to require

coordination of these efforts with those of the federal government and other state

governments and "private agencies of every type."^^

Perhaps the most patent example of post-9/1 1 legislation having the potential

to give rise to executive branch adjudication responsibilities is from Nevada,

where the legislature "refocused attention on the importance of domestic

preparedness for acts of terrorism and related emergencies," enacting legislation

that would protect against cyber-terrorism, energy, telecommunications and water
infrastructures, continuity of government, inter-governmental communication

among first responders, government identification cards, and statewide
coordination.^^

Ohio Rev. Code AisfN. § 4510.71 (Anderson 2004) (nonresident violator compact).

31. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified in

scattered sections of 6 U.S.C.).

32. Colo. Rev. Stat. § 24-33.5-1604 (2003).

33. N.Y. Penal Law § 470.21 (Consol. 2004).
34. Vt. Stat. Ann. tit. 13, § 3501 (West 2004).

35. La. Rev. Stat. Ann. § 29:722 (Lexis 2004).

36. Nev. Rev. Stat. 239C.010 (2004).



2005] EXECUTIVE BRANCH ADJUDICATION 443

D. Characteristics ofLegislative Reform

Each of the foregoing legislative schemes crafted in response to 9/1 1 have the

potential for adjudicative action. If we accept as a threshold the standard imposed
by constitutional jurisprudence, then a hearing will be required whenever the

governmental action falls within the state's administrative procedure act, or the

action has the potential to adversely affect a liberty or property interest. Less

troubling of the two is the instance where legislation expressly provides for

review by existing administrative adjudicators. In such cases, the path for redress

against threats to liberty or property interests is at least well marked—typically
the state's administrative procedure act articulates the procedures to be used and

the interests to be protected. More difficult is when a legislative scheme calls for
governmental action but is silent with respect to whether executive branch

adjudication is to be provided.

To make a determination of whether some kind of hearing is required, we
need to recall that the Due Process Clause (as applied to the states through the
Fourteenth Amendment) applies only to individualized decisionmaking and only
when the governmental action threatens a deprivation of a property or liberty
interest.^'' 'The limitation that the Due Process Clause only applies to
individualized decisionmaking dates back to . . . the early 1900s. The Court has
continued the distinction between individualized deprivations of property or

liberty, which require due process, and policy-based deprivations affecting a class

of individuals, which do not."^^ The power to quarantine, for example, may be
exercised in such a manner as to not give rise to due process interests, unless it

amounts to individualized decisionmaking.^^

Assuming the governmental interest involves individualized decision-making,
the core question at the outset is whether the legislation adversely affects a

property or liberty interest. The Supreme Court stated in Roth that "[pjroperty
interests ... are not created by the Constitution. Rather they are created and their

dimensions are defined by existitig rules or understandings that stem from an

independent source such as state law—rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits. '"^^ Upon a
claimed violation of a property right, the claimant must "have more than an
abstract need or desire" for the benefit, and must have "more than a unilateral

expectation of it. He must, instead, have a legitimate claim of entitlement to it.'"^^
A liberty interest, on the other hand,

37 . See WiLUAM FUNK ET AL., ADMINISTRATIVE PROCEDURE AND PRACTICE 250-56 (2d ed.

2001).

38. Id. at 251 (citing Londoner v. Denver, 210 U.S. 373 (1908); Bi-Metallic Inv. Co. v. State

Bd. of Equalization, 239 U.S. 441 (1915)).

39. See Michael S. Gilmore & Dale D. Goble, The Idaho Administrative Procedure Act: A
Primerfor the Practitioner, 30 IDAHO L. REV. 273, 331-32 (1994); but see State ex rel. McBride

V. Superior Court for King County, 174 P. 973 (Wash. 1918) (individual subject to quarantine

granted habeas corpus hearing).

40. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).

41. Id. at 511.



444 INDIANA LAW REVIEW [Vol. 38:435

denotes not merely freedom from bodily restraint but also the right of the

individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring
up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized at

common law as essential to the orderly pursuit of happiness by free
42

men.

Thus, a liberty interest is found in an array of governmental action, including

actual restraint on freedom, as in the case where the Attorney General proposes

to detain aliens,"^^ and when the state highway patrol administers a
breathalyser/sobriety test as a result of a roadside stop."^

Emerging as perhaps the broadest of executive powers are those powers

intended to respond to threats to public health. Also developed in the wake of
9/11, the Model State Emergency Health Powers Act (the "Model Act"/^
proposes state-level responses to emergency health threats, "including those

caused by bioterrorism and epidemics. '"^^ This model act calls for comprehensive

planning at the state level, for responding to public health emergencies, and

"grants specific emergency powers to state governors and public health

authorities.'"^^ It identifies executive responsibilities for early detection of health

emergencies and investigation through enhanced access to private medical

records; it authorizes and regulates the "care, treatment, and housing of patients,

and [the destruction of] contaminated facilities or materials"; and empowers the
executive to "provide care, testing and treatment, and vaccination to persons who
are ill or who have been exposed to a contagious disease, and to separate affected
individuals from the population at large to interrupt disease transmission.'"^^ By
its own terms, the Model Act recognizes the need to balance individual interests
against the common good, by providing "state and local officials with the ability
to prevent, detect, manage, and contain emergency health threats without unduly

interfering with civil rights and liberties.'"*^

These emergent legislative schemes all invest in the executive branch a level

of decision-making authority expressly aimed at determining individual liberty

42. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

43. Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (regarding an alien's liberty interest in

challenging indefinite and potentially permanent detention).

44. Mackey v. Montrym, 443 U.S. 1 (1979) (applying the Mathews due process analysis for

deprivation of liberty interests after refusal to participate in alcohol-related breath testing).

45. The Center for Law and the Public's Health at Georgetown and Johns Hopkins

Universities, The ModelStateEmergencyHealthPowers Act (2001 Draft), reprinted in J.L.

Med. & Ethics 324 (2002) [hereinafter MSEHPA].
46. Id. at 328, pmbl.

47. Id.

48. Id.

49. Id.



2005] EXECUTIVE BRANCH ADJUDICATION 445

and property rights. Not all expressly provide, however, for administrative

process, or for any kind of hearing. As a result, governmental decisionmakers
and those who find themselves subject to public safety laws may need to
anticipate the role of executive adjudicators in these emergent schemes: we need
to determine when a hearing will be necessary, and whether the executive branch
adjudicator should be used as the initial fmder of facts.

E. Adjudication Responsibilities of the Executive Branch in

Public Safety Cases

Given the ubiquity of agency actions and the firmly entrenched role of

executive adjudication in so many public safety programs, it makes sense to
recognize the adjudication responsibilities attendant to such a role. Certainly not

all executive public safety schemes will include a fact-finding process, but when
they do and when the process implicates those liberty or property interests
protected by the state or federal constitutions, care must be taken to give effect

to the relevant procedural protections.

When employed to preside over a fact-finding proceeding, the executive
adjudicator simultaneously must promote the agency's role in implementing

policy while serving as the principal protector of the participants' due process

rights. Unlike the judicial branch adjudicator, who is a generalist and not a
specialist, "the administrative law judge and the agency heads (together with their

staff) are familiar with technical issues and equipped to draw specialized

inferences based on their experience."^^ The specialist adjudicator presides over
a fact-finding process that, too, is specialized and possesses its own formalities.
Most notable in the administrative process is the expectation that decisions by the
adjudicator will be reduced to writing, with findings of fact and conclusions of

law articulated in the decision-making process. The executive adjudication is
modeled after judicial branch evidentiary process, but there are some significant
distinctions:

Judges characteristically approach the question of how much process is
due in terms of the extent to which an administrative proceeding must

adopt the panoply of procedural formalities that are found in court trials.

Judge Friendly, in his very useful article. Some Kind of Hearing, 123 U.
Pa. L. Rev. 1267 (1975) listed the following ingredients of judicial due

process: (1) an unbiased tribunal; (2) notice of the proposed action and

the grounds asserted for it; (3) opportunity to present reasons why the
proposed action should not be taken; (4) the right to present evidence,

including the right to call witnesses; (5) the right to know opposing
evidence; (6) the right to cross-examine adverse witnesses; (7) [a]

decision based exclusively on the evidence presented; (8) right to

50. Stephen G. Breyer et al.. Administrative Law and Regulatory Policy 743 (5th
ed. 2002).



446 INDIANA LAW REVIEW [Vol. 38:435

counsel; (9) requirement that the tribunal prepare a record of the

evidence presented; and (10) requirement that the tribunal prepare

written findings of fact and reasons for its decision.^'

These are the core characteristics of executive branch fact-finding processes, and

by their very nature they permit a substantial diversity of approaches and

procedures. Applied to emerging legislative schemes enforcing public safety

laws, this core group of characteristics will serve to guide lawmakers, providing

a set of structural minimum requirements for any executive adjudication system
that might emerge in the wake of 9/11.

III. Calculating Costs and Benefits in Administrative Proceedings

When it engages in fact-finding in an administrative proceeding, the
executive branch uses many of the tools traditionally employed by courts,
including cross-examination, control over the introduction of evidence, and

established burdens of proof, among other judicial tools. Unlike courts of the
judicial branch, however, the executive adjudicator is by definition and design not

independent of the executive branch. Also, unlike the trial court judge, who most
often is a generalist, the executive adjudicator is usually a specialist, chosen for

her or his expertise in one or more complex disciplines administered by the
agency. Further, unlike the trial court process, there is no system of adjudication

by peers through a jury; rather, the agency model provides for adjudication

through appointed decision-makers, fact-finders who are by experience and
training familiar with the relevant science, regulatory scheme, benefit program,

or technology at hand. Further, unlike the jurist who attains his or her judicial
position through political appointment or direct popular election, the executive

adjudicator may have secured his or her position simply by filing a well-timed
application with an agency in need, and may from that point forward be insulated
from meaningful public accountability through the protections of civil service or

collective bargaining.

Thus, there are both costs and benefits that adhere to using the executive

adjudicator in public safety cases that involve fact-finding adjudications. One
immediate and self-evident benefit inuring to the executive officer (i.e., to the

Governor or President) is that the executive is empowered to directly select fact-
finders, and—depending on how ALJ appointments are made—need not seek
approval of the appointment from the judiciary, the legislature, or the public.

There is no uniform set of credentials an executive branch adjudicator must

possess, not even training in the law is required. This allows for some flexibility
in the appointment of persons who can serve as adjudicators. The executive is
able to appoint persons who are likely to accomplish the policy aims of the
executive officer without being limited to lawyer applicants.

51. Id. at 830-3 1 (internal footnote omitted).



2005] EXECUTIVE BRANCH ADJUDICATION 447

A. The Costs and Benefits of Using Executive Adjudicators:
Flexibility and Adaptability

One benefit of appointment flexibility is that candidates for the position of
executive adjudicator may be more thoroughly possessed of knowledge of the
programs being administered, at least when compared with candidates whose key
credential is a license to practice law.

The cost of this benefit, however, is that the successful candidate may be
wholly unfamiliar with the historical context of due process rights as applied in

the adjudication setting. A substantial amount of legal training during law school
is dedicated to teaching the historical and theoretical concepts that are relevant

to administrative hearings, including due process, equal protection, procedural

fairness, and the use of evidence in adversarial and inquisitorial proceedings. If

a program opts to hire non-attorneys as ALJs or hearing examiners, the
adjudicator may be wholly lacking in an understanding of these complex aspects
of adjudication. Further, when the adjudicator is required to be licensed to
practice law, the public is assured that in his or her dealings as an adjudicator, the

ALJ or examiner will conform to not less than the minimum levels of
professionalism, ethics, and efficiency required of lawyers in that jurisdiction.

The unlicensed adjudicator, on the other hand, may stand to suffer no
consequence if he or she engages in action that would be considered

unprofessional if attributed to a licensed attorney. Instead of a code of

professional responsibility, the unlicensed adjudicator might be subject only to

state civil service rules, and then only if those rules are fairly precisely drawn to

include the practice of agency adjudication.

Another benefit (at least from the perspective of the executive officer) of

utilizing executive branch adjudicators is the fact that the adjudicator is not

wholly independent of the executive branch, but is instead part of that branch of

government. Whereas a judicial branch judge is free to (indeed is expected to)

interpret law and policy independent of the view espoused by the agency, the ALJ
is merely required to apply the law as interpreted by the agency.^^

B. Independence vs. Impartiality ofExecutive Branch Adjudicators—
the Due Process Question

Few subjects engender more spirited debate than the question of ALJ
independence, and with good reason: to the extent the ALJ is viewed as a means
for implementing policy through adjudication, the executive officer can correctly

insist that the adjudicator's conclusions of law and policy not be independently

arrived at, but must instead be drawn from the agency's point of view. As one
court explained when upholding a peer-review system against a claim that such
a system interfered with Social Security ALJs' decisional independence:

Policies designed to insure a reasonable degree of uniformity among ALJ

52. See Nash v. Bowen, 869 F.2d 675, 680 (2d Cir. 1989) ("Policies designed to insure a

reasonable degree of uniformity among ALJ decisions are not only within the bounds of legitimate

agency supervision but are to be encouraged.").



448 INDIANA LAW REVIEW [Vol. 38:435

decisions are not only within the bounds of legitimate agency supervision

but are to be encouraged. ... It is, after all, the Secretary who ultimately
is authorized to make final decisions in benefit cases. An ALJ is a
creature of statute and, as such, is subordinate to the Secretary in matters

of policy and interpretation of law. Thus, the Secretary ' s efforts through

peer review to ensure that ALJ decisions conformed with his
interpretation of relevant law and policy were permissible so long as such

efforts did not directly interfere with "live" decisions (unless in

accordance with the usual administrative review performed by the

Appeals Council). The efforts complained of in this case for promoting
quality and efficiency do not infringe upon ALJs' decisional

independence.^^

Thus, it is a misstatement of law to posit that due process requires that the

ALJ be insulated from policy directives or free to ignore the construction of law
espoused by the agency he or she serves. Not surprisingly, however, rank and file

ALJs tend to take issue with any claim that the agency interpretation of
controlling law must be adopted by the adjudicator. Consider what one state ALJ
wrote about judicial independence of the executive branch adjudicator:

One of the central tenets of our legal system is the due process concept
that decision-makers must be independent, in order that they can be

neutral and impartial in their decisions. They must avoid, and should be
shielded as much as possible from, any influences that might in any way
compromise such independence, neutrality and impartiality—in order
that every person . . . can receive equal justice based on the law and not

on preconceived notions or improper influences.
^"^

Here the claim is that a "central tenet" of due process is that all decision-makers

must be independent, yet for executive branch adjudications there is no authority

for this proposition, rendering its validity as a "central tenet" suspect if applied

to ALJs.

7. The Dependent Nature ofAdministrative Adjudicators.—To the contrary,
the Supreme Court has clearly endorsed the use of executive branch
decisionmakers who were wholly dependent upon the agencies they serve, and
in some instances even dependent upon the private industries involved in the
regulatory scheme, as long as the adjudicators were unbiased. For example, the

Court in Schweiker v. McClure upheld a practice of reimbursing hearing officers
employed by private insurers for reviewing Medicare claims as agents of the U.S.

Department of Health and Human Services, even though the hearing officers were
employees of the private carriers.^^ Due process did indeed play a significant role
in the Court's decision, but it did so with respect to bias of the adjudicator, not

the adjudicator's independence.

53. Id. (citations omitted).

54. Ann Marshall Young, Evaluation ofAdministrative Law Judges: Premises, Means, and

Ends, 17 J. Nat'l ASS'N OF ADMIN. L. JUDGES 1, 24 (1997).

55. Schweiker v. McClure, 456 U.S. 188, 195 (1982).



2005] EXECUTIVE BRANCH ADJUDICATION 449

In Schweiker, the Court did not support the assertion that all decisionmakers

must be independent nor that they must be shielded from influences that may
compromise their independence: "The hearing officers involved in this case serve

in a quasi-judicial capacity, similar in many respects to that of administrative law
judges. As this Court repeatedly has recognized, due process demands
impartiality on the part of those who function in judicial or quasi-judicial
capacities."^^ The Court thus recognized these adjudicators as serving in the same
quasi-judicial role as that of ALJs, but it then rejected the notion that these

hearing officers needed to be independent of the agencies they served or were

disqualified due to their close ties to the carriers: "Due Process is flexible and
calls for such procedural protections as the particular situation demands.

"^^

Rejecting claims that the dependent relationship between the agency and the

adjudicator violated the Due Process Clause, the Court wrote that "appellees
adduced no evidence to support their assertion that, for reasons of psychology,

institutional loyalty, or carrier coercion, hearing officers would be reluctant to

differ with carrier determinations. Such assertions require substantiation before

they can provide a foundation for invalidating an Act of Congress."^^ The Court
considered the appellee's claims of the need for an independent executive

adjudicator, and then rejected those claims

in light of the strong presumption in favor of the validity of

congressional action and consistently with this Court's recognition of

"congressional solicitude for fair procedure" . . . [and held that]

Appellees simply have not shown that the procedures prescribed by
Congress and the Secretary are not fair or that different or additional

procedures would reduce the risk of erroneous deprivation of . . .

benefits.^^

Schweiker has repeatedly been cited as authority supporting the proposition

that in administrative adjudications, the executive adjudicator need be neither

independent nor insulated from agency direction or control.
^^

56. Id. at 200 (quoting Morrisey v. Brewer, 408 U.S. 471, 481 (1972)).

57. Id.

58. /^. at 197 n. 10.

59. Id. at 200 (quoting Califano v. Yamasaki, 442 U.S. 682, 693 (1979)).

60. See Ferreras v. Ashcroft, 160 F. Supp. 2d 617, 633 (S.D. N.Y. 2001) (quoting Bertrand

V. Sava, 684 F.2d 204, 212-13 (2d Cir. 1982) (In immigration proceedings: "[T]he Attorney

General's exercise of his broad discretionary power [to release unadmitted aliens under 8 U.S.C.

§ 1 182(d)(5)] must be viewed at the outset as presumptively legitimate and bona fide in the absence

of strong proof to the contrary."); D'Amato v. Apfel, No. OOCiv. 3048 (JSM), 2001 U.S. Dist.

LEXIS 9459, at *15-16 (S.D. N.Y. July 10, 2001) (quoting Schweiker, 456 U.S. at 195) (citations

omitted) (In proceedings before the Social Security Administration: "The Commissioner

acknowledges that due process requires an impartial decision-maker in administrative proceedings.

However, there is a presumption of honesty and integrity in those who serve as adjudicators for

administrative proceedings. Furthermore, this presumption of integrity can be overcome only by

'a showing of conflict of interest or some other specific reason for disqualification.'").



450 INDIANA LAW REVIEW [Vol. 38:435

2. The Accountability of Administrative Adjudicators.—Not only may the
executive officer retain close ties to the agency adjudicator, because the executive

officer and the agency head are both publicly accountable for proper

implementation of legislative policy, either also may reject conclusions of policy
and law offered by the adjudicator if the adjudicator fails to conform to the

interpretation of the law as expressed through the agency head or the executive

officer. As one commentator observed, in the context of hearings conducted
under the federal APA:

The top officials of an agency are appointed to make, to interpret, and to
apply policy choices, and they are held accountable for their actions in

various forums. The agencies, with strong judicial backing, have read
the somewhat equivocal provisions of the APA to maintain this broad
grant of authority and its corresponding accountability. Specifically, the

Act has been construed to permit the agency heads to reverse

determinations of hearing examiners relatively freely. Because the APA
bars contact and consultation only with the trial staff during intra-agency

review, the heads of agencies still may use other members of their staffs
to make final decisions. Most agencies with large adjudicatory loads
maintain special opinion-writing sections not institutionally separate

from the agency heads for this purpose. The result has been final actions
with little consideration of the hearing examiner's recommendations or

of anything else that went on at the trial level.^^

Thus, the opinion-writing staff of an agency may be wholly separate from and sit
in review of the agency adjudicator, able to reject or modify the legal

constructions expressed by the ALJ or hearing examiner. This process is
warranted because ultimately it is the agency head (and his or her President or

Governor) who must account to the people for the agency's judgment.
Considered in the context of state-based executive adjudications in public

safety cases, the diminished independence of ALJs is reflected in the decision of
the New Hampshire Supreme Court in Asmussen v. Commissioner, New
Hampshire Department of Safety.^^ Asmussen was a state hearings examiner
whose docket included cases involving the state department of safety, including

cases involving driver challenges to administrative license suspensions arising out

of citations for driving while under the influence.^^ By statute the department's
assistant commissioner had ultimate supervisory authority over the bureau of

hearings, which employed Asmussen. The assistant commissioner was concerned
that hearings examiners were "conducting hearings . . . with the formalities of a

court proceeding, and that police officers were losing cases on technical

grounds."^ The assistant commissioner met with the hearings examiners

6 1

.

William F. Pedersen, Jr. , The Decline ofSeparation ofFunctions in RegulatoryAgencies,

64 Va. L. Rev. 991, 1005-06 (1978) (citations omitted).

62. 766 A.2d 678 (N.H. 2000).

63. Mat 685.
64. Id.



2005] EXECUTIVE BRANCH ADJUDICATION 45

1

(including Asmussen), and "instructed them not 'to act like judges' and not to

conduct hearings as if they were courtroom trials. "^^ He specifically instructed
the examiners to admit hearsay and directed that the rules of evidence would not

apply to administrative license suspension hearings, adding that the examiners

were not to dismiss hearings automatically on technical grounds such as

failure of the police officer to state that the road where the driver was

arrested was a public way. Rather, they were to reopen the hearing first
and allow the police officer an opportunity to introduce the required

proof. Moreover, they were instructed to ask questions to develop the

evidence and assist the officer in meeting his or her burden of proof
^^

These and other directions were communicated both during the assistant

commissioner's meeting with the examiners and through a memo issued after the
meeting. The directives, not surprisingly, concerned the examiners, and some
allegedly communicated about the directives ex parte with members of the
defense bar. The assistant commissioner then held another meeting and informed
the examiners "that if they could not carry out department policies, they could

resign, but they could not undermine the policies."^^ The examiners apparently
were effective in conveying to the defense bar their concerns about these

directives, because several defendants facing administrative license suspensions

filed a joint petition seeking declaratory relief in voiding the terms of the

directive.^^

Drawing upon language in the New Hampshire Constitution that "it is the
right of every citizen to be tried by judges as impartial as the lot of humanity will

admit,"^^ the court first confirmed that this language applies to hearings

examiners acting as "quasi-judicial officers."^^ Further, the court noted the state's

constitution "mandates ... an independent judiciary so that the adjudication of

individual controversies is fair and remains uninfluenced by outside forces.
"^^

However, the court distinguished hearing examiners fromjudges, reflecting upon
the hearing examiners' duty to engage in policy-making:

Thus, the principal issue raised on appeal is the extent to which the

assistant commissioner may exercise supervisory authority in a manner
that affects the independence of quasi-judicial hearing examiners. "A
judge is a member of a separate and independent branch of government,
bound only to decide cases in accordance with the constitution and laws
of New Hampshire and of the United States." The hearings examiners
in this case, by contrast, are employees of the department of safety, an

executive branch agency, and their "impartiality" must be considered

65. Id.

66. Id. (citation omitted).

67. Mat 686.
68. Id.

69. Id. at 692 (quoting N.H. CONST, art. 35).

70. Id.

71. Id. (quoting Petition of Mone, 719 A.2d 626, 633 (N.H. 1998)).



452 INDIANA LAW REVIEW [Vol. 38:435

within the context of the policy-making responsibility that officials of the

agency, including the assistant commissioner, hold/^

Specifically, the court recognized that in the act of policy-making the executive

officer may indeed express an interpretation of the law, and that interpretation of
law is binding on the examiners:

On issues of policy and legal interpretation, hearings examiners are
subject to the direction of the agency by which they are employed, and
their independence is accordingly qualified. Influence ordinarily is not

deemed improper unless it is aimed at affecting the outcome of a
particular proceeding. Thus, the assistant commissioner's "efforts ... to

ensure that [the hearing examiners'] decisions conformed with his

interpretation of relevant law and policy were permissible so long as such

efforts did not directly interfere with 'live' decisions.
"^^

C Implicit in the Balance: The Integrity ofALIs
This is not to argue that the legal analysis of ALJs and hearing examiners

should be dismissed as unimportant. To the contrary, the analysis is a critical part
of the adjudicative process and should reflect the highest level of intellectual and

judicial processing—it is the heart of the administrative process, and if it lacks
integrity and credibility the process will fail for want of public support.^"^ What
it does suggest, however, is that the adjudicator must recognize the significance

of agency interpretation of law and policy. In the absence of such recognition,

both the agency and the public at large are left unsure of whether the adjudicator

is actually applying institutional doctrine or is, instead, pursuing policies that suit

his or her personal views but arbitrarily contradict the agency' s interpretation of

the law.

In sum, the benefits of executive adjudication include the ability to employ

a highly flexible workforce of persons familiar with factually complex and

technically-driven governmental programs; the ability to delegate to this

workforce responsibility for finding facts through an adversarial or inquisitorial

process; the ability to require uniform application of law and policy to

adjudicated facts; and the ability to dissolve the workforce after the exigent

circumstances requiring such adjudication passes. The costs associated with these
benefits include a diminution of the degree of decisional independence possessed

by the finder of fact with respect to issues of law, accompanied by the possibility

that the public will feel disenfranchised or deprived of an independent (and thus

presumably unbiased) adjudicator.

72. Id. (quoting Appeal of Seacost Anti Pollution League, 482 A.2d 509, 517 (N.H. 1984)

(Brock, J., concurring specially)).

73. Id. at 692-93 (internal citation omitted) (quoting Nash v. Bowen, 869 F.2d 675, 680 (2d

Cir. 1989)).

74. See Christopher B. McNeil, Critical Factors of Adjudication: Language and the

Adjudication Process in Executive and Judicial Branch Decisions, 23 J. Nat'lAss'n OF ADMIN.

L.Judges 411, 412-13 (2003).



2005] EXECUTIVE BRANCH ADJUDICATION 453

D. Executive-Judicial Collaboration: Judicial Branch Supervision of
Administrative Process

Because it is not the product of an independent analysis but is instead the

result of applying agency policy to impartially determined facts, an executive

branch adjudication merits special handling when presented to the judicial
branch, once the agency's role is at an end. Judicial branch adjudicators are

obliged to take into account that the proceedings at the agency level may have
included evidence that would have been inadmissible in proceedings conducted

under the state's rules of civil procedure and rules of evidence. Courts likewise

need to recognize the role of the judicial branch in serving as a check against

statutory and regulatory schemes that violate constitutional rights—a role
unavailable to most agencies, whose adjudicators do not generally have the power

to invalidate either statutes or regulations no matter how patently unlawful.
Judicial review of agency action after an administrative hearing is frequently the

first opportunity afforded to litigants who seek an independent assessment of the
constitutional validity of agency action. Nevertheless, the review by courts is

subject to significant restraint, amounting to deference by courts to agency

construction of both fact and law.

Applied in the context of responding to terrorist threats or action, judicial

review of agency decisionmaking could quite plausibly be severely tested.

Challenges to quarantine orders based on the deployment of biological weapons,

for example, or challenges to decisions imposing mass restrictions on travel based

on reports of breaches of national or state security, or challenges to agency action

based on intelligence gathered under the auspices of the Homeland Security Act
and USA PATRIOT Act (and their state-based correlatives) could easily strain
our judicial system beyond its known limits. If these challenges must first be
raised in an administrative forum, then the role of courts becomes even more
vital, and the need for inter-branch collaboration becomes profound.

Goldberg v. Kelly'^ confirmed that the judicial branch is fully equipped to

address the ways and means of distributing justice through agency adjudication.
Indeed, Goldberg presents a similar query, involving not threats to public safety

but threats to sustenance and support for millions of persons in desperate need of

financial and social welfare benefits. Where Goldberg describes the process
required for the government to terminate public assistance payments to a

particular recipient,^^ the threat of terroristic action will require courts to

determine the process required when the state or federal government proposes to
restrict travel or access to medical support, financial resources, information, or

even to the courts.

Key to this collaboration between the judicial and executive branch is the
degree to which the courts will defer to the executive adjudicator, both with
respect to factual findings and with respect to apphcable law. Guided by

75. 397 U.S. 254(1970).

76. Mat 261, 266-67.



454 INDIANA LAW REVIEW [Vol. 38:435

Chevron'^ we know a number of tests may be invoked to determine how much
deference courts should give to agency adjudication. Indeed, the diversity of

approaches available to courts in reviewing agency action suggests (at least at the

federal level) the lack of a cohesive body of law applicable to the process of
judicial review of agency action.^^

Despite the array of approaches available to courts in the exercise ofjudicial

review over agency adjudication, such review will likely be of significant

importance in serving as a check over impermissibly broad use of executive

adjudicative power. Telling is the Court's construction of the Authorization for

Use of Military Force resolution (AUMF),^^ which authorized the President to use
"all necessary and appropriate force" against persons associated with the 9/11

attacks. ^^ In Hamdi v. Rumsfeld,^^ the Court examined the suspension of the writ
of habeas corpus with respect to an individual who allegedly was a United States
citizen captured in Afghanistan and transported to a United States Navy facility
in Virginia. Although the Court was unable to agree on an opinion, it held by two
different majorities that the AUMF provided the executive branch with some
authority to detain United States citizens as enemy combatants, but in doing so
the detainee had a right to an administrative hearing that would afford him or her
at least an opportunity to present evidence that he or she was not an enemy
combatant.^^ The Court held that "although Congress authorized detention of
combatants in the narrow circumstances alleged here, due process demands that

a citizen held in the United States as an enemy combatant be given a meaningful
opportunity to contest the factual basis for that determination before a neutral

decisionmaker."^^

In Hamdi, the detainee presented his claim before an Article EI court, seeking

relief under 28 U.S.C. § 2241, which the Supreme Court found to allow "some
opportunity to present and rebut facts" and retains in courts "some ability to vary

the ways in which they do so as mandated by due process. "^"^ Here the

government argued against the courts having any role, asserting that "'[r]espect

for separation of powers and the limited institutional capabilities of courts in

matters of military decision-making in connection with an ongoing conflict'

77. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (concerning

the deference afforded to agency interpretation of its own regulations); see also United States v.

Mead, 533 U.S. 218 (2001) (concerning an agency's summary rulings); Christensen v. Harris

County, 529 U.S. 576 (2000) (concerning an agency's interpretive rules and summary rulings);

Skidmore v. Swift & Co., 323 U.S. 134 (1944) (concerning an agency's interpretive rules).
78. See RICHARD J. PIERCE jR. ET AL., ADMINISTRATIVE LAW AND PROCESS 390 (4th ed.

2004) ("The Court has addressed the scope of Chevron issue several times since Mead, but its

subsequent opinions merely illustrate the murky nature ofthe Mead test and the continued existence

of widely differing views among the Justices.").

79. Authorization for Use of Military Force, Pub. L. No. 107-40, 1 15 Stat. 224 (2001).

80. Id. § 2.

81. 124S.Ct. 2633(2004).

82. Id. at 2635.

83. Id.

84. /^. at 2644.



2005] EXECUTIVE BRANCH ADJUDICATION 455

ought to eliminate entirely any individual process, restricting the courts to

investigating only whether legal authorization exists for the broader detention

scheme."^^ The Government argued that the courts should accept factual claims
without exercising judicial power: "[ujnder this review, a court would assume

the accuracy of the government's articulated basis for . . . detention . . . and assess

only whether that articulated basis was a legitimate one."^^

Recognizing that this case involved the "tension that often exists between the

autonomy that the Government asserts is necessary in order to pursue effectively

a particular goal and the process that a citizen contends he is due before he is

deprived of a constitutional right,"^^ the Court applied traditional due process

doctrine and evaluated the need to assess "*the risk of an erroneous deprivation'

of the private interest if the process were reduced and the 'probable value, if any,

of additional or substitute safeguards. '"^^ Thus, even in the context of executive

action to detain a person suspected of enemy combatant status, administrative
process is warranted, for "the risk of erroneous deprivation of a citizen's liberty

in the absence of sufficient process here is very real."^^ In this way the Court
makes plain the judiciary's role in serving as a check on executive branch
adjudication, here in the context of enemy combatant status:

In so holding, we necessarily reject the Government's assertion that
separation of powers principles mandate a heavily circumscribed role for

the courts in such circumstances. Indeed, the position that the courts

must forgo any examination of the individual case and focus exclusively

on the legality of the broader detention scheme cannot be mandated by

any reasonable view of separation of powers, as this approach serves

only to condense power into a single branch of government. We have
long since made clear that a state of war is not a blank check for the
President when it comes to the rights of the Nation's citizens.^^

Thus, even in an environment charged with extreme threats to public safety, there

is a familiar role for the courts which employs traditional due process tools to

protect against overreaching by the government. Despite the exigent

circumstances attendant to the "war on terror," the decision-making process

employed by the government in Hamdi nonetheless is subject to traditional due
process measures, including meaningful oversight of the executive decision-

making process by the independent judiciary.

85. Id. at 2645 (citing Brief for Respondents at 26).

86. Id.

87. /J. at 2646.

88. Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

89. Id. at 2647 (noting the Brief for AmeriCares et al. as Am/c/ Curiae, at 13-22, which states

that "[t]he nature of humanitarian relief work and journalism present a significant risk of mistaken

military detentions").

90. Id. at 2650 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)).



456 INDIANA LAW REVIEW [Vol. 38:435

IV. Structuring Executive Branch Adjudications to Meet the
Demands of a Post-9/1 1 World

A. Alternative Approaches in Executive Branch Adjudication

Not all administrative adjudication schemes are alike, and their differences

can be of importance when crafting systems designed to meet emergent public
safety needs. Furthermore, one cannot help but believe the beleaguered Assistant

Commissioner of the New Hampshire Department of Public Safety in Asmussen
would have preferred not to have rampant hostility directed toward his attempts

at achieving a unified corps of qualified and effective hearings examiners.^^ If

experience and logic suggest a more effective and efficient means of producing

a cadre of ALJs or hearing examiners for use in times of emergent threats to

public safety, it perhaps makes sense to recommend that lawmakers choose those
options most likely to achieve the desired effect, while endeavoring to avoid

those approaches that seem to guarantee a hostile reaction by the incumbent

adjudicators.

A review of current case law and literature suggests that a set of structural
variables exist that may be of particular importance to lawmakers when creating
a public health or safety-related administrative adjudication scheme. The first

variable is global, focusing on the institution in which the adjudicator operates,

distinguishing between internally employed or appointed adjudicators and those

employed by a central panel of adjudicators who are part of the executive branch
of government but are not actually employed by the agencies for which they hear

cases. The other is a set of subordinate variables that include controls over ex

parte communication, training of the adjudicator, the weight to be given by the

agency to the ALJ's decision, and the scope ofjudicial review in the appeal of the

agency's final order. The impact of these subordinate variables changes

depending on whether the adjudicator is internally placed or is part of a central

panel.

1. The Importance of Structure: Appointment of the Executive Adjudicator

in Public Safety Adjudication Schemes.—When facing the need to create an
adjudicative scheme that might be well-suited to use adjudicators from the

executive branch, lawmakers first must delegate fact-finding authority and then

must determine who will wield that authority (or leave that determination to the
executive branch itself). The menu of options has grown substantially since the
1940s and the emergence of the modem administrative state. At one end of the
spectrum, the adjudicator may be the very person appointed by the Governor or
President, and may sit in judgment without benefit of any form of further
delegation. Because this approach generally is impractical (and particularly so

in the case of safety-related adjudications like those involving driver licensing,

health and safety permitting, and other high-volume administrative

adjudications), there more often than not will be some delegation to an examiner

or ALJ. The question then becomes to what degree should the agency control the

adjudicator?

91. See supra text accompanying notes 62-73.



2005] EXECUTIVE BRANCH ADJUDICATION 457

Drawing an example from the federal scheme, ALJs who are employed under
the provisions of the federal Administrative Procedure Act are part of the

agencies they serve, but enjoy insulation from agency influence to some degree,

because their terms of employment are prescribed by the U.S. Office of Personnel

Management independently of agency recommendations or ratings.^^ In addition,
ALJs under the federal APA are exempt from the performance ratings prescribed
for other civil servants, and, also unlike most federal civil servants, ALJs under
the APA have tenure without first having to go through a probationary period,^^
and cannot be removed without a formal adjudication.^"^ The lack of traditional
evaluative tools diminishes the ALJ's accountability to the public and to his or

her employer, leading to the potential for abuse by the ALJ against the agency or
the public. This is perhaps more of a concern where the affected party to a
governmental scheme is weak or powerless due to economic or social status.

^^

In an effort to explore and quantify the relationship between the executive

adjudicator and the agencies served by them, the Administrative Conference of

the United States (ACUS) in 1992 commissioned the first significant national
survey of administrative law judges since the 1981 overhaul of the APA.^^ This

survey provided the most comprehensive set of data on ALJ utilization to date.
Lending credence to the concerns associated with the lack of ALJ accountability
under the APA, Professor Koch noted:

From my participation with the ACUS Study Group, I perceive that the
problems involve the failure of an unacceptable number of presiding
officials, particularly those in the privileged position of ALJ, to perform

their function fairly and with an acceptable level of competence and

diligence. As with any large group, there are poor performances and
failures of integrity. Unlike other groups, those responsible for the

failures here are insulated from criticism. Aggravating the situation is

the fact that the individuals most often adversely affected are already

very disadvantaged people. We must find a way to monitor the presiding
officials so that these individuals are not subjected to breakdowns in the

administrative process.
^^

Professor Koch was specifically referring to ALJs from the Social Security
Administration as it existed in 1992.^^ There appears to be no similar survey

conducted since 1992, so it is not possible to determine whether these concerns

continue to pose a threat to the integrity of the administrative process. Koch
notes further that one very significant participant in the administrative

adjudication process was not surveyed at all: the litigants (and their attorneys).

92. 5 U.S.C. § 5372 (2000).

93. See 5 C.F.R. § 930.211 (2004).

94. 5^e 5 U.S.C. § 554.

95

.

Charles H. Koch, Jr. , Administrative Presiding Officials Today, 46 ADMIN. L. Rev. 27 1

,

272(1994).

96. Id. at 275-77.

97. Id. at 272.

98. Id. 2X211.



458 INDIANA LAW REVIEW [Vol. 38:435

This was particularly lamentable, in Koch's view, because he and others involved

in the ACUS study "received enough information from other sources to suggest
a need to inquire" into the views of those who appear before ALJs.^^ His
recommendation that the interests of those whose fortunes are presented to the
executive adjudicator should be studied seems to be as appropriate in 2004 as it

was in 1992. In Koch's view, "the system does not do enough to assure that the

administrative judiciary will be sensitive to those who appear before it."^^^
Indeed, one of the recommendations presented later in this Article addresses the

want of current information and suggests that new data be gathered to better
acquaint lawmakers with accurate information about ALJ effectiveness and
accountability, and that such data include reports on participant reaction to the

process.
^^^

2. The Tangible Adverse Consequences ofAdjudicator Insulation: Lack of
Accountability.—This level of insulation from agency control has produced some
telling results. Federal agencies, where possible, avoid using ALJs, and in their

place have installed a less well-insulated adjudicator, now generally referred to
as an administrative judge, or AJ.^^^ In reporting on the results of the ACUS
survey, Professor Koch described the key differences experienced by ALJs and
AJs in the early 1990s, differences that shed some light on the practical realities
of executive branch adjudication in the federal system. *^^ Although AJs to this

point had not been the subject of any formal studies, by 1992 their ranks in the

federal system had swelled to 2700, in contrast to approximately 1150 ALJs,^^

suggesting widespread agency interest in avoiding the use of highly insulated

ALJs.

Unlike ALJs, AJs are not covered by the APA provisions regulating ALJs and
do not attain the tenure status enjoyed by ALJs.^^^ The ACUS study surveyed
both ALJs and AJs, gathering data about the adjudicators' perceptions about
potential challenges to their independence, asking whether the adjudicators ever

were asked to do things that "are against their better judgment," whether they

were subject to "too close supervision," and whether they were satisfied with their

jobs, among other questions. ^^^ Despite having less employment security and
structural independence, ^^^ the AJs reported less interference with the

performance of their jobs, ^^^ less anxiety about supervision, ^^^ and greater levels

99. Id. at 295.

100. Id.

101. 5^e m/ra Part IV.C.

102. Professor Koch credits John H. Frye III with coining the term. See Koch, supra note 95,

at 276 & n.23.
103. Id. at 276.

104. Id.

105. Mat 278.
106. Id. at 277-82.

107. Id. at 278.

108. Id. at 278 & nn.40-42.
109. M at 278 & n.39.



2005] EXECUTIVE BRANCH ADJUDICATION 459

110
ofjob satisfaction than did the ALJs, leading Koch to conclude:

First, the tension over performance management, here as elsewhere, is

inevitable, but this kind of management is more often accepted by
presiding officials than some assert. Second, here, as elsewhere, the
outward manifestations of this tension are very individualized and must

be met with mechanisms that can offer individualized solutions. Third,

the structural and formalized solutions are not as effective as less formal

approaches.*^'

Twelve years have passed since this survey was taken, and the exponential

growth of the administrative state is reason enough to both call for the gathering

of new data and to recommend the 1992 data be viewed with some reserve.
Nevertheless, based on what we now know about the role of the executive
adjudicator, when applied in the context of creating adjudication schemes for
public safety cases at the state level, the data discussed by Professor Koch
suggests that the structure of the adjudication system may be less important than
the means by which individual ALJ concerns about decisional integrity are
handled.

Protecting the adjudicator from overreaching by the administrative

head—long a goal of Social Security ALJs—seems less pressing a need than
ensuring each adjudicator has an effective means of airing his or her employment-
related grievances while extending the same kind of protection to those who
appear in front of the adjudicator. If our courts repeatedly affirm the proposition

that ALJs and hearing examiners are bound to follow the interpretation of law as
prescribed by the agency heads, then the agency head is not overreaching when
he or she insists the executive adjudicator abide by agency interpretation of the

law. If what the ALJ really wants are improvements in job-related benefits like
better working hours, safer working locations, a superior parking pass or similar

prerequisites of the job, then Koch's suggestion makes even more sense: he
specifically recommends maintaining an ombudsman to "not only protect the
public from the presiding officials but also [to] protect the presiding officials

from oppressive agency management."'*^

The 1992 ACUS study went beyond questions of adjudicator independence,
however, and examined a countervailing point: the ability of the structure to

"assure that the presiding officials are faithful" to the choices made by those
possessing the power to make policy.*'^ According to Koch, "[a]gencies
increasingly complain that some presiding officials consistently ignore agency
policy choices."**"^ The concern was borne out in the ACUS data, where
according to Koch, "while the ALJs considered themselves bound by agency
regulation, they did not feel constrained by less formal expressions of policy."**^

no. Mat278&n.68.

111. Mat 281.
112. Id. at 275.

113. /d at 282.

114. Id.

115. /J. at 284.



460 INDIANA LAW REVIEW [Vol. 38:435

This attitude was of some concern to Koch:

The failure to heed official public statements of policy violates the
presiding officials' own view that they should not engage in
policymaking. More importantly, as the agency is bound by
nonlegislative policy pronouncements, so too are its adjudicators (unlike

judges). That is, if they ignore the agency statements of policy, not only

are the adjudicators arrogating to themselves a policymaking function but

they are violating the law.'^^

As Koch noted, given the willingness of ALJs to disregard the expressions of
agency policy, the agencies have a legitimate need to monitor the ALJs'

faithfulness to agency policies, but that need has to be met through "a mechanism
for assuring policy integrity without creating the appearance of interfering in

individual determinations."^
^^

B. Executive Adjudicators: The Internal Model, the Itinerant Contractor,

and the Central Panel

As noted above, the ACUS study examined two kinds of executive
adjudicators: the ALJ—a well-defined position expressly provided for by the
federal APA, and the AJ—an evolving alternative to the more insulated and less
accountable ALJ. Other mechanisms for employing executive adjudicators do

indeed exist, however, and should be considered by lawmakers when creating a
program that employs executive adjudicators.

7. The Agency 's In-House Adjudicator.—At one end of the spectrum is the
in-house ALJ, i.e., the full-time employee of the agency, whose job description
may be limited to hearing agency cases, or may expand beyond that, so that he
or she hears agency cases but does so as one of many incidents of employment.
Professor Rossi describes this as an "internal" model:

[T]he 'internal' model views the ALJ as operating entirely within the
agency. For example, if a regulatory matter involves an investigation and

decision to prosecute, when a hearing is requested under . . . [this model],
an ALJ within the agency decides the relevant issues of fact and—at least
in instances where ALJs are more than mere record-compilers—law.
Following issuance of the ALJ's decision, the agency head is given an

opportunity to review the ALJ's findings of fact and law. The agency
head takes the final agency action or the action can be appealed and

reviewed by a court. So, in applying the internal model, a reviewing

court evaluates the agency head's reaction to an agency ALJ. The agency
may have accepted the ALJ's order or allowed the time for rejecting or
modifying the ALJ's order to pass, but the agency has the opportunity to

reject or modify the ALJ's proposed findings of fact and law.^^^

116. /J. (citations omitted).

117. Id.

118. Jim Rossi, Final, But Often Fallible: Recognizing Problems With ALJ Finality, 56

Admin. L. Rev. 53, 56 (2004).



2005] EXECUTIVE BRANCH ADJUDICATION 46

1

For example, the Ohio State Medical Board has such an arrangement,''^ albeit

with non-statutory provisions for separately housing and managing the

adjudicator staff to remove the opportunity for hearing examiners to be involved

in either the prosecution or investigation of charges. A key advantage to
maintaining in-house adjudicators is their increased level of familiarity with the

agency's programs and policies. Under this system, however, participants who
take the trouble to fmd out such things will learn that their judge in licensure
proceedings before the Board is an employee of the Board, which may in turn
give rise to concerns about fundamental fairness, where the judge is subject to

supervision by the very agency that made the decision to investigate and then
prosecuted the cause.

2. The Agency 's Itinerant Adjudicator.—A variant of the internal model, one
that retains with the agency the power to specifically name the person who will
serve as adjudicator in a given case, is the contract adjudicator model. Under this
approach, the agency solicits invitations to qualified persons—either lawyers or
not—to serve as agency adjudicators either on a case by case basis, or on a
regular, repeating basis. This approach allows the agency to seek out attorneys

or others who are familiar with agency programs and who have the skills needed
to preside over evidentiary hearings. The use of itinerant contract-based
adjudicators allows agencies to keep overhead costs down and, in jurisdictions
where it is permissible, allows the agency to hand-pick its adjudicators based on

the exigent circumstances attendant to the case at hand. In those states where an

alternative centralized panel of full-time adjudicators is available, however,

resorting to an ad hoc selection of an adjudicator, if coupled with a potential for

additional service as the need arises, may trigger a successful due process claim
against the agency.

'^^

As with internal employee-adjudicators, the decisions rendered by an itinerant
adjudicator will likely be presented as a recommendation and not a final order.

'^'

The agency thus preserves its ability to accept, modify or reject findings of fact
and conclusions of law, and in this way retains public accountability for its final
orders. The cost associated with this approach is like that associated with
Professor Rossi's internal model; public confidence may be shaken if claims
against the adjudicator's impartiality are made based on the contractual ties
between the adjudicator and the agency.

3. The Governor's Central Panel.—Perhaps the most highly evolved means
for implementing a legislative scheme that delegates fact-finding authority to the

executive branch is the central panel—a stand-alone entity that supplies agencies
with well-trained and qualified administrative adjudicators who are not part of the
agency. Something of a novelty in the early 1980s when seven states had central

119. See OfflO Rev. Code Ann. § 4731.23 (Anderson 2004); OfflO Admin. Code Ann. §
4731-13-03 (Anderson 2004).

120. See, e.g., Haas v. County of San Bernardino, 45 P.3d 280 (Cal. 2002).

121. See, e.g., OfflO REV. CODE Ann. §§ 1 19.07 and 1 19.09 (Anderson 2004) (prescribing a

hearing examiner's report that is presented to the agency head for approval, modification, or

rejection).



462 INDIANA LAW REVIEW [Vol. 38:435

panels, their use spread after substantial revisions to the Model State
Administrative Procedure Act were completed in 1981, such that by 1996
eighteen states had central panels/^^ Professor Flanagan now reports that,
twenty-five states and three large cities operate under central panel systems.

^^^

He also provided us with a definition: "A central panel of ALJs is a cadre of
professional adjudicators who are administratively independent of the agencies
whose cases they hear, and thus, thpy are removed from agency influence.

"^^"^

The curb appeal of central panels is fairly obvious: litigants have their cases
decided by someone who is not actually employed by the agency, resulting in a
presumptively more fair hearing by a presumptively more independent
adjudicator. The concept has its detractors. Professor Koch, for example,
considered the shift to a central panel to be an "idea [that] goes in exactly the

wrong direction" because it "further insulates the presiding officers from public
scrutiny and solidifies the closed club environment" and it fails to confront what

Koch saw as "the real problem."'^^ It would "destroy the fundamental advantages
of having expert decision-makers experienced with specialized processes.

"^^^

Agencies too may resist the trend, if only to preserve their ability to implement
policy through the adjudication process, with the least amount of risk that an
externally appointed adjudicator would misunderstand or misapply that policy.

C. Evaluating the Merits of Central Panel Adjudication in

Public Safety Cases

While an extensive comparison of the central panel variants is beyond the

scope of this Article, general observations may be of some use to lawmakers
when considering whether to delegate fact-finding authority to the executive
branch in response to increased threats to public safety. First, executive control

over the fact-finding process increases as the discretion whether or not to use an

adjudicator from a central panel decreases. In plain English, if a governor can
require cases to be heard through a central panel adjudicator, his or her control

over the process increases—but it does so at the expense of control by the
individual agencies served.

For example, in Ohio, where there is no central panel, there are over three

hundred state agencies, most of which have the power to adjudicate and make
findings of fact.^^^ In its present decentralized state, the governor has

122. Christopher B. McNeil, The Model Act Creating a State Central Hearing Agency:

Promises, Practical Problems, and a Proposalfor Change, 53 ADMIN. L. REV. 475, 486 (2001).

123. See James F. Flanagan, An Update on Developments in Central Panels and ALJ Final

Order Authority, 38 IND. L. REV. 401, 403-04 nn.13-15 (2005).

1 24. James F. Flanagan, Redefining the Role ofthe State Administrative Law Judge: Central

Panels and Their Impact on State AUAuthority and Standards ofAgency Review, 54 ADMIN. L.
REV. 1355, 1356 (2002).

125. Koch, jfMpra note 95, at 274.

126. Id

127. See BALDWIN'S OHIO ADMINISTRATIVE LAW HANDBOOK AND AGENCY DIRECTORY
(2004).



2005] EXECUTIVE BRANCH ADJUDICATION 463

appointment authority—he or she has the abihty to appoint board and
commission members along with the power to appoint heads of departments. The
governor thus has the power to implement policy through adjudications

conducted by hearing examiners appointed by each of the individual agencies, but

may exercise the appointment power only as vacancies are filled, typically
through an attrition process that requires a full four years for complete turnover

of appointed positions.

If taken as typical of non-central panel states, Ohio suggests there are

significant limits to how effective a newly-elected governor can be in using the
administrative adjudicative process to implement policy in a state with

decentralized executive adjudicators. For example, when determining whether
the adjudicators should receive training or other professional development to

respond to emergent threats to public safety, the governor would need to seek

assistance from any number of boards, commissions, agencies and departments.
Rather than having one key person to go to—the Chief Administrative Law Judge
of a central panel—the governor must rely on the effectiveness of any number of
different approaches taken by state agencies when hiring and using administrative
hearing examiners. Perhaps more than any other lesson learned from the attacks

of 9/1 1 , we know that it is critically important to make sure public safety officers
and law enforcement officers can bridge gaps created by decentralization of

governmental functions. Among all models of executive adjudication, the central
panel approach most closely meets those needs because it divests individual

agencies of many of the incidents of autonomy, while retaining the power to
develop adjudicative systems with the one person actually elected as the state's

executive officer—the governor—who in turn appoints the Chief ALJ.^^^
In 1997, the American Bar Association, through its House of Delegates,

unanimously adopted the Model Act Creating a State Central Hearing Agency.
^^^

This template for creating a central panel of administrative law judges or hearing

examiners is modeled on the legislation by which Maryland's Office of

Administrative Hearings was created. ^^^ Key attributes of the model central panel
are its ability to establish uniform mandatory minimum credentials for the
adjudicators; its mandate that a code of ethics be established for all executive

adjudicators; its ability to evaluate, train and discipline its adjudicators, and the

fact that the Chief ALJ, not the agency, decides which ALJ will hear any
particular case.

Neither the Model Act, nor Maryland's Office of Administrative Hearings,
nor any existing variant of central panel should be regarded as the one true course

to follow when creating a central panel designed to meet emergent public health
and safety needs. Indeed, one of the key concerns is occasioned by the want of

reliable and current data showing how states use agency adjudication, and how

128. See, e.g., Md. Code Ann., STATE GOV'T § 9-1603(a) (2003) ("The Office is headed by

a Chief Administrative Law Judge appointed by the Governor with the advice and consent of the

Senate.").

129. See MODEL ACT CREATING A State Central Hearing Agency ( 1 997), reprinted in
McNeil, supra note 122, at 541 app.

130. McNeil, supra note 122, at 494.



464 INDIANA LAW REVIEW [Vol. 38:435

such adjudication is perceived by the public as being fair and effective. There

are, however, some characteristics of these panels that warrant particular attention
by lawmakers interested in crafting a fact-finding system that will effectively

respond to evolving demands for administrative decisionmaking. These

characteristics may, in turn, suggest how to examine ALJ utilization in the states
to see whether these or other variables might prove especially important in

increasing the public's trust and confidence in administrative adjudication while

at the same time ensuring the effective implementation of legislative initiatives

through executive adjudication.

D. Critical Factors in Creating Responsive Adjudicative Structures After 9/11

Apart from the fundamental question of organizational structure, lawmakers

should be aware of variables present in adjudicative systems that become
prominent when ceding judicial power to the executive branch. Whether the
presiding officer is an in-house staff member, a contract adjudicator, or a member
of one form or another of central panel, the adjudication process needs to leave

in all participants a sense that they have been heard by a fair and unbiased

adjudicator. This may be particularly true when the adjudicative scheme involves
public safety issues (as contrasted with, for example, utility rate-making or

employment benefit programs).

1. The Unique Character ofPublic Safety Adjudications.—A review of the
literature suggests a present need to consider the implications of direct threats to

public health and safety at the state level. First, in a draft prepared by the Center

for Law and the Public's Health at Georgetown and Johns Hopkins Universities,
the Model State Emergency Health Powers Act (MSEHPA) is offered in
recognition of the need for contingencies against a spectrum of emergency health

threats, "including those caused by bioterrorism and epidemics," that require "the

exercise of essential government functions."^^^ The MSEHPA is noteworthy in
part because it brings to the fore the range of governmental action—at both the
national and local levels of government—that are likely to be implicated in the
event of future threats to our homeland security. Under the Act, government

officials are authorized to gather data that otherwise might be kept confidential,

and they are directed to coordinate efforts among the entire spectrum of
governmental entities. They can "use and appropriate property as necessary for
the care, treatment, and housing of patients, and to destroy contaminated facilities

or materials"; are empowered "to provide care, testing, and treatment, and
vaccination to persons who are ill or who have been exposed to a contagious
disease"; and are given the authority to "separate affected individuals from the

population at large to interrupt disease transmission."
^^^

In balancing these powers against the protection of individual liberty and

property interests, the MSEHPA recognizes the need to "respect the dignity and
rights of persons," requires the use of these emergency powers be "grounded in

a thorough scientific understanding of public health threats and disease

131. MSEHPA, supra note 45, at 328, pmbl.
132. Id.



2005] EXECUTIVE BRANCH ADJUDICATION 465

transmission," and at the same time instructs "in the event of the exercise of

emergency powers, the civil rights, liberties, and needs of infected or exposed

persons will be protected to the fullest extent possible consistent with the primary

goal of controUing serious health threats.
"*^^

Two provisions under the MSEHPA warrant mention with respect to
adjudication. First, the Act invests in the judicial branch, not the executive

branch, judicial authority to grant petitions for an order authorizing a quarantine

of individuals or groups of individuals.*^"^ Second, the Act allows public health

officials to retain sufficient power to direct isolation or quarantine without

judicial approval "if delay in imposing the isolation or quarantine would

significantly jeopardize the public health authority's ability to prevent or limit the

transmission of a contagious or possibly contagious disease to others." *^^ The Act
imposes a check on the executive by limiting no-notice quarantines to ten days,

during which time the public health authority is required to petition a court for

authority to continue the isolation or quarantine. *^^ Other than this judicial

avenue, there is no provision for action by the public health authority to submit

to fact-finding or an adjudication of any kind when deciding whether grounds
exist for isolation or quarantine.

*^^

One author, examining Missouri's legislative version of the MSEHPA, noted
that, at least in Missouri, "[t]here are so many important procedural safeguards
that need to be fully addressed in the states' laws that the Model Act gives no
guidance."*^^ The author notes that there are no provisions for protecting the
constitutional rights of persons opposed to vaccination on religious grounds, no

protection of persons whose immune systems or other conditions render them at
greater risk in the event of a forced vaccination, no provisions for the

enforcement of quarantine, *^^ and no provision for health care responders whose

job it would be to care for those in the quarantined area.*"^^ Indeed, if nothing

else, it would seem beneficial at the earliest possible stage for legislators and the
executive branch to determine which, if any, of these events warrant the

intervention of informed fact-finders as adjuncts to regulatory schemes designed

to protect public health in times of epidemic, whether induced by terroristic

action or otherwise.

Closely akin to threats of bioterrorism are threats to the environment, whether

or not induced by forces hostile to the United States. As one author noted:

The environment and public health goals hold a common value of

133. Id.

134. Id. at 341-42, § 605(b) (isolation or quarantine with notice).

135. /J. at 341, § 605(a) (temporary isolation and quarantine without notice).

136. M. at 341, § 605(a)(4).

137. See id. at 341-42, § 605(a)-(b).

138. Shenna Bradshaw, Note, Quarantined: Is Missouri Prepared to Sacrifice Some of Its

Constitutional Freedoms to Ensure Public Health Safety in an Outbreak?, 7 1 U. Mo. K.C. L. Rev.

939, 952 (2003).

139. Id. ("Would there really be armed guards at the home of those quarantined . . . ?").

140. Mat 951-52.



466 INDIANA LAW REVIEW [Vol. 38:435

healthy populations. The threat of bioterrorism requires a partnership of
both, building upon the long history of the link between public health

and the environment. This existing relationship is key to an effective

system of biodefense for the nation, because the use of biological

weapons through every environmental pathway poses a potential threat.

Contaminations of water, growing crops, grazing cattle, air through

inhalation, dermal absorption, or consumption of food or water in the

human environment are potential delivery methods.
^"^^

Like public health, environmental systems have long been the subject of

extensive regulation at all levels of government. In describing the shifts in policy

wrought by the attacks of 9/11, the Environmental Protection Agency (EPA)
announced that its "traditional mission has expanded to include protecting our

country against the environmental and health consequences of acts of

terrorism."
^"^^ Through the Department of Homeland Security, the federal

government signaled a change in how states should prepare against threats to
security; it proposed "three shifts in federalism":

^"^^

First, "the Department would set national policy and establish guidelines

for state and local governments;" second, the proposal makes the

Department of Homeland Security "the lead agency preparing for and
responding to . . . biological . . . terrorism," which takes part of the states'

public health agencies' responsibility as described in the CDC biodefense
plan; and third, the proposal directs that "[t]he new Department would
ensure that local law enforcement entities—and the public—receive clear
and concise information from their national government," which again,

takes part of the states' public health agencies' responsibility in

originating their own public health information.^"^

Given these shifts in power, particularly in environmental and health-related

fields, it makes sense to anticipate a need for administrative adjudications within

the scope of the Homeland Security Act. It is also likely that some of those
claims will be resolved through processes that usurp state procedural protections

in favor of regional or national processes. It also suggests a need for executive

adjudication schemes that work between and among neighboring states, as might
arise where a river common to several states is threatened by terroristic
contamination.

Remaining uncharted, even through the model offered in MSEHPA, are
strategies for anticipating the need for cooperation among states, particularly

141. Victoria Sutton, Environment and Public Health in Time ofPlague, 30 Am. J.L. & MED.
217,217(2004).

142. Id. at 226 (quoting EPA Administrator Christine Todd Whitman's Sept. 2002 letter
appended to EPA, STRATEGIC PLAN FOR HOMELAND Security (2002), available at http://www.

epa.gov/epahome/downloads/epa_homeland_security_strategic_plan.pdf).

143. W. at 223.

144. Id. (citing Ofrce OF HOMELAND Security, National Strategy for Homeland

Security 2.5 (2002), available at http://www.whitehouse.gov/homeland/book/index.html).



2005] EXECUTIVE BRANCH ADJUDICATION 467

neighboring states when subjected to threats that cross geographic borders. State
line demarcations are meaningless when a region is responding to a biological
threat, whether from terroristic action or careless handling of scientific material.

While such threats may not give rise to a federal response, prescient state
lawmakers should consider confederated responses, responses based on the needs

of two or more states to act in collaboration with each other.

Equally important is the need to understand how best to bridge administrative
procedural gaps arising not only among the states, but between the states and the
federal government. Legislation drafted in furtherance of protecting homeland

security will, by its very nature, include interests that are both local and national

in character. When, for example, British health authorities in the fall of 2004 shut
down one of two main flu vaccine suppliers to the United States, the public health
implications were felt at all levels of government. Professor Richards noted the

trend^'^'' as state and federal public health officials reacted with a number of
administrative schemes designed to route scarce vaccines to those most in need.^"^^

In the absence of any administrative procedure bridging the gap between state and

federal interests, the patchwork of approaches is both stark and unsettling.

One step in this direction is the development of model rules of administrative
procedure for use in proceedings conducted under interstate compacts. The
Administrative Law and Regulatory Practice Section of the American Bar
Association convened a task force in early 2004, charged with drafting a model

APA for use by entities created through interstate compacts. ^"^^ The task force
will develop protocols for subscriber states to use when joining interstate
compacts similar to the compacts already available to states in regulating driver

licensing among member states.
Despite the urgency that would accompany any terroristic attack, there should

be some regard given to public reaction to and understanding of substantial

145. See Professor Edward P. Richards, Louisiana State University Law Center, Medical and

Public Health Law Site, Emergency Measures to Manage the Flu Vaccine Shortage, at http://

biotech.law.lsu.edu/cases/vaccines/oregon_flu. htm (last visited Feb. 6, 2005).

146. See Oregon Dep't of Human Servs. , Oregon Influenza Vaccine Education and
Prioritization Plan 2004-05 (Oct. 8, 2004), available at http://biotech.law.lsu.edu/cases/

vaccines/finalfluplan.pdf.

The Oregon State Health Officer has determined that, due to an influenza vaccine

shortage, adverse and avoidable health consequences to identifiable categories of high-

risk individuals could occur. Therefore, assistance with administration of vaccine is

warranted to protect these individuals. Under Oregon Revised Statute 433.040, the

State Health Officer and the Oregon Department of Human Services (DHS) implement

this Oregon Vaccine Education and Prioritization Plan to protect the public during a

vaccine shortage. The plan consists of: 1) guidelines for healthcare providers; 2) rules

for imposing civil penalties for violation of the guidelines; 3) mobilizing public and

private health resources; and 4) notifying health professional boards of violations. This

Plan is effective immediately, October 8, 2004, and will stay in effect through March

31, 2005, unless otherwise amended or rescinded.

Id.

147. See Ronald M. Levin, Interstate Compacts and Administrative Procedure, 29 ADMIN. &
Reg. L. News, Winter 2004, at 7-9.



468 INDIANA LAW REVIEW [Vol. 38:435

deprivations of property or liberty interests. In his article, When Terrorism
Threatens Health: How Far are Limitations on Personal and Economic Liberties
Justified, Professor Gostin notes the value of perception and norms, even during

a crisis such as would be launched upon us in the event of another attack:

Primarily, due process helps ensure that compulsory powers are correctly

applied. By affording individuals the right to a fair hearing, there is
increased certainty that the individual actually is infectious, poses a risk

to others, and cannot or will not comply with public health advice. Even
if due process cannot always ensure the accuracy of decisionmaking,

there is a normative value in granting a right to a hearing. Government
demonstrates respect for individuals by allowing them to see the
evidence against them and present their case to an impartial fact finder.
There is a self-expressive importance to procedural due process; fair

procedures allow individuals to convey a sense of grievance that has

intrinsic worth. There also is a value to racial, ethnic, or religious groups

that feel singled out unfairly for coercion. By allowing members of the
group to articulate the perceived unfairness in an open and deliberative

process, the group gains a collective sense of being heard.
^"^^

If we heed Professor Gostin' s teaching, then it would behoove the government
to anticipate the public's attention and its need to be able to trust the adjudicative

systems in place, even during times of local or national strife in response to a

terroristic threat or act.

2. The Needfor Current ALJ Utilization Data.—Before applying Professor
Gostin' s suggestions and before making recommendations based on this review
of the law, some mention should be made about the real limits of this analysis.
A premise central to this Article is that the administrative process succeeds only
to the extent that people have trust and confidence in it. A large motivating force
behind the central panel concept is that separating the adjudicator from the

agency decreases the risk of improper governmental influence over fact-finders

and does so in a way that the public will both recognize and appreciate. Lacking
in this premise, however, is substantial quantitative data; we know neither how
ALJs are utilized in the states nor how the public receives them. If one of the
other premises of this Article proves true and we find the use of executive branch
adjudications increasing as we shift decision-making power from the judicial
branch to the executive branch in response to threats to public health and safety,

then it would seem to be of critical importance that we gather the data needed to
fully inform lawmakers of how best to promote administrative adjudications at
the state level.

3. The Life ofthe Law is Experience.-—The epigraph to this Article reminds
us of Holmes's often-quoted observation that the "life of the law has not been

logic: it has been experience. "^'^^ Indeed, it seems few areas of the law are more
dependent on experience, and not logic, than are due process analyses in the

148. Lawrence O. Gostin, When Terrorism Threatens Health: How Far are Limitations on
Personal and Economic Liberties Justified?, 55 Fla, L. Rev. 1 105, 1 165-66 (2003).

149. Holmes, 5Mpra note 1, at 5.



2005] EXECUTIVE BRANCH ADJUDICATION 469

context of administrative law. From its inception, administrative law has defied
simple and logical structures, electing instead to nearly self-generate by picking

and choosing pieces of legal systems from the judicial and legislative branches,

all in an attempt to facilitate the efficient and fair use of executive branch

resources. Determining just how much "process" is due under a given set of laws
and facts is more art than science, and doing it well under adverse conditions can

be both trying and highly rewarding, often at the same time.

An adjudicative system, whether in the executive branch or the judicial
branch, must reflect Holmes's view that experience should guide us. Stated as a

question, what experiences can we draw upon when asking lawmakers to give
judicial or judge-hke powers to the executive branch? How can we wean the
public, one that has a deep and abiding trust in notions ofjustice and due process,

away from the judicial model of adjudication so that it will have trust and
confidence in fact-finding proceedings conducted not by the judicial branch but

instead by the executive branch? It is no answer to pretend the ALJ is a judicial
branch adjudicator. Indulging in such pretense may appease ALJs who aspire to
be judicial branch judges, but it misleads the public and does not advance the

cause of due process. Perhaps a better approach would be to develop the

executive branch so that its adjudicators inspire in all participants the sense of

justice having been served whenever an ALJ takes the bench.
4. Why ALJ Utilization Data is Important: Due Process in Agency

Adjudications.—Missing from this equation to date, however, is data that will
show how agencies currently use executive adjudicators and how the public
receives these adjudicators. ALJ utilization and the public's perception of the
administrative adjudication process are key parts of any comprehensive due

process analysis of agency adjudications. Under the three-part test of due process
articulated in Mathews v. Eldrige,^^^ courts will weigh governmental adjudication
claims against a standard that asks (1) what are "the private interest[s] that will

be affected by the official action," (2) what is "the risk of an erroneous

deprivation of such interest through the procedures used, and the probable value,

if any, of additional or substitute procedural safeguards," and (3) what is "the

Government's interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement

would entail."^^^

Applying this balancing formula, we see that agency process will be
evaluated not by a single easily articulated set of standards, but relatively. How
does the process being evaluated on appeal look when compared with other
adjudicative processes? What are the risks that the agency might reach an
erroneous conclusion based on the process being reviewed? What "additional or
substitute procedural safeguards" exist? What are the costs and benefits inuring
to the Government, i.e., the "fiscal and administrative burdens," that additional

or substitute processes would entail? Due process thus anticipates comparisons,
both by agencies when creating adjudicative schemes and by courts when
reviewing the adequacy of such schemes. We therefore want to encourage

150. 424U.S. 319, 335(1976).

151. Id.



470 INDIANA LAW REVIEW [Vol. 38:435

agencies to compare processes and to consider the fiscal and administrative

burdens associated with conducting adjudications so as to better defend the ways

and means of a given state's administrative hearing process.

What is missing from this calculus is data: data showing how states use
ALJs, and how agencies, the participants, and the public regard ALJ utilization.
As noted above, the Administrative Conference of the United States (ACUS)
conducted a national survey in 1992 to gather data about federal ALJ and AJ
utilization. For that study, questions were presented to 1 150 sitting federal ALJs,

with 610 (about 53%) responding; 380 questionnaires were sent to AJs, with 264
(about 69%) responding. ^^^ Because the study concerned the presiding officials'
"perception of the potential challenge to their independence, and realistic

responses," ^^^ it was limited to considering the adjudicator's viewpoint only; the

study probed neither the agency nor the litigants, leaving out key elements of a

comprehensive analysis of how agencies operate, how they use adjudicators, how
the agencies respond to their adjudicators, and how litigants and the public at
large regard the process. Nevertheless, the ACUS group of surveys described by
Professor Koch provides an important building block upon which a more
comprehensive examination of ALJ utilization may be made.

5. Using AU Utilization Data to Build Social Frameworksfor Courts and
Legislature.—Data concerning ALJ utilization could be of substantial assistance
to states as they develop adjudicative tools designed to meet emergent health and

safety adjudication needs, particularly in the aftermath of 9/11. We know httle
of what kinds of threats will present themselves, but we know there are many
ways of responding to those threats (and anticipating them so as to prevent the

harm posed by the threats). Data on ALJ utilization could provide what is needed
to build what social scientists Laurens Walker and John Monahan call the "social
frameworks" that are useful when lawmakers and other decision-makers create
legislative systems. ^^^ This data, if gathered and examined appropriately, could

be interpreted through empirical analysis and then used by courts in the due

process calculus required by Mathews v. Eldridge. Ideally, we would gather data
from every state to know better how states use ALJs, in what kind of cases, with
what kinds of process, and we would know how effective those processes are in
earning the public's trust and confidence.

Walker and Monahan offer some guidance when setting about to construct
social frameworks, particularly where the goal is to introduce the results of the

analysis in court proceedings. "Frameworks," they explain, "resemble legislative

facts as much as they resemble adjudicative facts." '^^ Here, the reference to
adjudicative and legislative facts comes from Professor Davis, who distinguished

152. Koch, supra note 95, at 276-77.

153. Id. 2X211.

154. Laurens Walker & John Monahan, Social Frameworks: A New Use ofSocial Science in
Law, 73 Va. L. Rev. 559, 568 (1987) (using the term "social framework" to "refer to [the] uses of

general conclusions from social science research in determining factual issues in a specific case,"

id. at 560, and providing as examples "cases concerning eyewitness identification, assessments of

dangerousness, battered women, and sexual victimization," id. at 563).

155. /J. at 584.



2005] EXECUTIVE BRANCH ADJUDICATION 47

1

the two: "When an agency [or court] wrestles with a question of law or policy, it
is acting legislatively, . . . and the facts which inform its legislative judgment may
conveniently be denominated legislative facts." '^^ In the context of

administrative proceedings, whether a material fact is "adjudicative" or

"legislative" may make a difference in who—as between the agency head or the
ALJ—makes the factual determination.'^^ Walker and Monahan apply this in the
context of creating tools for use by courts:

Legislative facts, in other words, are facts that courts use when they
make law (or "legislate"), rather than simply apply settled doctrine to
resolve a dispute between particular parties to a case. While the

determination of adjudicative facts affects only the litigants before the

court, the determination of legislative facts influences the content of legal

doctrine itself, and therefore affects many parties in addition to those
who brought the case.'^^

Data about ALJ utilization would be useful in creating legislative facts. For
example, if we knew that most state ALJs prepare recommendations only and do
not render final orders, and if the data shows strong public support for this

approach, then we could use this information in the cost/benefit analysis required
under Mathews. Against a challenge that the agency's decision should be

rendered by the ALJ and not subject to review by the agency, the agency could
present as a legislative fact the high correlation of participant satisfaction with

ALJ recommendation authority. The Mathews due process test is a hybrid of fact
(e.g., what are the different procedural options available throughout the states and

when are they used) and policy and law (e.g., what is the likely value of
additional protections). Given this hybrid nature, building a social framework

using ALJ utilization data to create legislative facts would, potentially at least,
allow state courts nationwide to consider national data concerning ALJ
utilization. This would be useful when the court has to evaluate a claim under
Mathews that a given adjudication scheme (perhaps one that did not provide for
face-to-face hearings, for example) meets or fails to meet each of the three tests

in Mathews.

One goal of this Article, then, is to suggest the need for collecting data from
all the states that would permit the development of a social framework describing

ALJ utilization in the state administrative adjudication process. Such data would
include information about which states use ALJs, for what purpose, with what

156. Kenneth Gulp Davis, An Approach to Problems of Evidence in the Administrative

Process, 55 Harv. L. Rev. 364, 402 (1942); see Getty Petroleum Mktg., Inc. v. Gapital Terminal

Go., 391 F.3d 312, 322 n.l2 (1st Gir. 2004) ("'Adjudicative' facts, which are governed by Fed. R.

Evid. 201, are 'simply the facts of the particular case.' . . . 'Legislative facts,' by contrast, include

facts 'which have relevance to legal reasoning and the lawmaking process, whether in the

formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative

body.'") (internal citation omitted).

157. See F. Scott McGown & Monica Leo, When Can an Agency Change the Findings or
Conclusions ofan AU?: Part Two, 51 BAYLOR L. REV. 63, 68-69 (1999).

158. MONAHAN & Walker, supra note 1, at 181.



472 INDIANA LAW REVIEW [Vol. 38:435

qualifications, with what level ofjudicial review, and at what cost. It would also

include data about user trust and confidence in the adjudicative process as well

as data about agency confidence in its own ability to implement policy through
the adjudicative process. Such an analysis is currently being considered by the

National Association of Administrative Law Judges, in conjunction with the
National Judicial College and the LBJ School of Public Affairs. If implemented,
such a study may yield data from the first national ALJ utilization survey
expressly designed to develop a greater understanding of state administrative

adjudication systems.

V. Identifying Relevant Requirements in Agency
Adjudication Legislation

In order to prepare lawmakers for the challenges that exist when creating or
updating an executive adjudication system, it seems prudent to learn what we can
from existing ALJ adjudication programs. In any review of legislation
considering the use of ALJs in agency fact-finding, four key requirements merit
mention. First, the system must, through continuing education ensure a trained

and competent pool of adjudicators. Second, there must be some express
provision regarding ex parte communication between the adjudicator and the

agencies being served. Third, lawmakers must determine whether the ALJ's

decision will be binding on the agency. Fourth, the role of the judicial branch and

its oversight of agency decision-making must be expressly stated. Meeting these

requirements can reassure participants that all protected property and liberty

interests will be protected and respected, while at the same time ensuring that

even during times of high anxiety due to threats to public safety, executive policy

and process requirements will be adhered to.

A. Educating the ALJ on Policy and Process

Whether the ALJ is internal to the agency or a member of a central panel, he
or she is valued both because of his or her familiarity with substantive agency

programs and because of his or her ability to apply due process principles to the

agency's adjudication process. Maintaining that level of familiarity with

substance and process is critically important, particularly in emergency

management. It is even more critical now that innovative threats to our homeland
security may surface with little or no advanced warning. Any legislation that
might adversely affect liberty or property rights would need, as a bare minimum,

a means of ensuring that the appointed adjudicators are familiar with the public

health and safety policies supporting such legislation and understand the nature

of due process protections under both state and federal law.

Here, the central panel has clear advantages that should be taken into account

by lawmakers when deciding the kind of adjudicator that should be used to hear
public safety cases. First, central panels are more efficient and effective at

distributing information. Peer-to-peer educational programs, like those provided

through the National Judicial College at the University of Nevada—Reno, allow
topical and timely dissemination of fundamentals of law and current trends both

within the state and across the nation. Within a state's central panel, information



2005] EXECUTIVE BRANCH ADJUDICATION 473

can be passed along among ALJ peer networks. ALJ competence and proficiency
is assured through pooled resources like joint continuing professional

development seminars, peer review and quality control, in-house training, intranet

e-mail, and other peer-to-peer programs.

In contrast, the internal ALJ system described by Professor Rossi *^*^ must
decide, on an agency-by-agency basis, whether to invest in any given educational

program. Viewed from the perspective of a governor's chief of staff, this
decentralized system of keeping ALJs current on the law is significantly less cost-
efficient and may fall materially short if training is required on an ad hoc and
emergency basis. Worse yet is the itinerant contractor system, which depends
entirely on the individual ALJ's willingness to invest in the cost of relevant

continuing education. Neither the internal adjudicator nor the contract

adjudicator benefit from the transfer of information between state-wide ALJs who
pool information about their collective experience and disseminate that

information through an efficient and inexpensive state-wide training system.

The unique nature of public safety hearings—including the need to adapt
quickly to emergent and diverse threats—suggests a need to prepare executive
adjudicators for highly contingent or uncertain demands. A governor should have
confidence that his or her cadre of executive adjudicators can quickly identify

administrative needs in response to public health or safety threats and apply

known procedural protections when adjudicating issues arising from these needs.
One developing trend in furtherance of this concept is the idea of a national
certification for administrative law judges. ^^^ Ideally the certification would attest

to the adjudicator's knowledge of state and federal due process rights and reflect

the adjudicator's ability to apply those doctrines to any new conditions
confronting an executive agency. It would also set minimum qualifications for
persons who ask to be ALJs or hearing examiners and minimum continuing
education requirements. Even those states whose agencies prefer to use internal
or itinerant adjudicators would benefit from having a widely recognized

educational credential to rely on when hiring or retaining adjudicators.

B. Ex Parte Communication: Before, During and After a Hearing

When lawmakers consider whether to delegate fact-finding to an executive
agency, some thought should be given to the manner in which adjudicators learn
about agency policy. A fundamental expectation is that any law, regulation,
policy, or directive used by an agency adjudicator must be plainly identified

during the hearing process so that all parties know what law is being applied, and
so that challenges to such law may be made in a timely and effective manner. It
is antithetical to notions of fundamental fairness for the parties to make a
presentation to an ALJ based on one set of laws (the publicly known set), only to

159. See supra text accompanying note 118.

160. See Nat'l Ass'n OF ADMIN. LAW Judges, Strategic and Long-Range Plan, at
X(B)(l)(e) (Oct. 11, 2003), available at http://www.naalj.org/strategicplan.pdf; National

Association of Hearing Officials, NAHO Certification Program—2005, at http://www.naho.org/
Certific 1 .htm (last updated Feb. 25, 2005).



474 INDIANA LAW REVIEW [Vol. 38:435

have the ALJ adjourn after hearing the evidence and then base his or her decision
on another set of laws, perhaps expressed only through word of mouth or
institutional tradition.

Drawing upon the federal APA for guidance, lawmakers could elect to
prohibit ex parte communication, at least with respect to formal adjudication

proceedings. Ex parte communication "relevant to the merits of the proceeding"
are prohibited under the federal APA.'^* Professors Pierce, Shapiro and Verkuil

explain that the limit on ex parte communication in federal APA formal
adjudications "obviates any necessity of judging the consequences on an

administrator and offers significant protection to litigants from possible

unfairness.
"^^^ They go on to explain, however, that section 557(d)(1) of the

APA applies only to those in the agency performing investigative or prosecutorial
functions; and as a result, "agency heads, or commissioners, by the literal terms

of the APA, are free to make contact with ALJs about matters before them."^^^
Lawmakers would be well-advised, then, to determine consciously whether

ALJs should be limited to considering only the expressions of law exchanged
during the evidentiary hearing, and whether they should be subject to ex parte

communication on matters then pending before them. In both respects, the result

should be a transparent decision-making process, one that permits the parties and

the public to know the factual and legal bases for all agency adjudications.

C. To Bind or Not to Bind: The Controlling Ejfect ofan AU's Decision
on the Agency

Another consideration when delegating adjudicative authority to the
executive branch is whether the person who hears the evidence will make the
final decision, or whether that person will instead offer a summary of the record
for the benefit of the agency head who has retained final decision-making
authority. The power of an ALJ to bind the agency is something of a recent
development, which has caught the attention of several commentators.

Professor Rossi writes about this development in his article, Final, But Often

Fallible: Recognizing Problems with AU Finality}^ He discusses both de jure
finality, where by legislation ALJs are invested with statutory authority to render
final decisions, and de facto finality, where the burden involved in successfully

challenging ALJ findings is so substantial as to render the ALJ's decision final
through the use of "presumptions that, in effect, make the ALJ's
recommendations final."

*^^

The degree of difficulty an agency has in modifying or rejecting an ALJ's
findings of fact or conclusions of law is a significant factor in how effectively
agency policy may be expressed through adjudication. As Professor Flanagan
aptly notes, in those central panels where the ALJ has the power to render a final

161. 5 U.S.C.§ 557(d)(1)(A) (2000).

1 62. Pierce et al., supra note 78, at 7 1

.

163. /^. at 495.

164. Rossi, supra note 118, at 53; see also Flanagan, supra note 124, at 1373-76.

165. Rossi, supra note 1 18, at 63.



2005] EXECUTIVE BRANCH ADJUDICATION 475

order, the ALJs

will produce different interpretations and different results of the same

issue and will affect both the institution and the litigants. As for the
agency, the uncertainty affects all of its actions, before and after they

become contested cases. Any inconsistency between the policy
articulated by the agency ahd the policy enforced in contested cases leads

to confusion in the law.^^

This confusion could be significant in adjudicating public safety cases, where

both fact and law may be controverted. In public safety cases posing novel
questions or questions not yet fully vetted by agency interpretation, it would be

up to the ALJ to articulate publicly an Agency interpretation of law based on the
facts presented in the record. Professor Rossi notes the problem:

From an accountability perspective, allowing a central panel ALJ to
trump the agency on [policy issues] is problematic. Central panel ALJs
often operate within the executive branch, but they are generally non-

political. Unlike the agency, which has substantive regulatory

jurisdiction, the central panel has not been delegated the authority to

regulate in a specialized area. Agency heads, unlike most ALJs, are
political appointees, accountable (through appointments and removal, as

well as budgetary oversight) to the executive branch and—perhaps to a
lesser, but no less important degree—the legislature (which writes and
amends regulatory statutes). The political accountability of agency heads
is important to ensuring the public legitimacy of agency action.

'^^

Lawmakers can avoid this potential for confusion, by expressly investing in the
agency final decision-making authority, even in those systems that employ a

central panel.
^^^

D. Judicial Deference to Executive Adjudications in Public Safety Cases

Judicial oversight may be appropriate when an agency completes its fact-
finding and makes its final determination of the rights and interests of the

participants in an administrative action. Although not constitutionally

mandated, ^^^ judicial review of agency action serves as an important check

against governmental abuse and has been widely employed both at the federal and

state levels. Given existing jurisprudence permitting adjudication by

decisionmakers who are not wholly independent of the interests of parties, only
by effective judicial review of agency orders can the legislative branch assure the

public of an independeilt evaluation of both law and fact issues. Yet, when it

166. Flanagan, supra note 124, at 1402.

167. Rossi, supra note 118, at 71.

168. See Rossi, supra note 1 18, at 73 ("In reviewing issues of policy, the agency's reasoning

framework should trump the ALJ's reasoning, or that of any competing expert witness.").

169. FuNKET AL., supra note 37, at 27 ("[AJlthough most agency actions can be appealed, the

[federal] APA recognizes that not all decisions are subject to judicial review.").



476 INDIANA LAW REVIEW [Vol. 38:435

reviews agency action, a court should take into account the procedural path that

led to appellate review.

The degree of deference to which an agency' s decision is entitled when being
reviewed by a court has long been a relevant and sometimes changing factor in

administrative law. Professor Rossi alerts us to one such change, occasioned by

a trend towards investing final decision-making authority in the ALJ, rather than

the agency. ^^^ While deference to the ALJ in fact-finding seems intuitive
(because the ALJ is the only adjudicator who actually observes the witnesses and
makes admissibility decisions on questions as they arise during a hearing), such
deference to the ALJ seems misplaced with respect to questions of policy and
law. Rossi makes the point:

One of the primary reasons for giving weight to the agency interpretation
or deferring to the agency is enhanced accountability, to the extent the

agency is responsible for enforcing the statutory scheme. Yet, deference

to an ALJ final order on issues of statutory interpretation risks
undermining agency accountability, particularly where the ALJ and
agency do not agree on the merits of a policy choice or statutory

meaning. Here, independence and accountability are in sharp tension.
^^^

The tension Rossi cites is certain to be present when agencies adjudicate
public health and safety claims, particularly as new policies are introduced in
response to the attacks of 9/11. The wide array of homeland security issues
confronting the nation's executive officers holds the potential for innumerable

questions involving the balancing of private liberty and property interests against

the common good. Thus, lawmakers would be well advised to consider carefully
the degree of deference that should be given when courts review agency
decisions. Rossi suggests that courts consider public accountability when
deciding how much weight to give to an agency decision, and offers this
workable approach:

At a minimum, reviewing courts should give strong weight to the
agency's interpretation of law, regardless of how the ALJ decided the
legal issue. From an accountability perspective, the deference approach
has much to commend, so long as reviewing courts defer to the
agency—not the ALJ—on issues of law in final ALJ orders. ^^^

In making administrative decisions, the agency's interpretation of law and policy

should be expressed as clearly as possible, with as few unintentional

inconsistencies as possible. Deferring to the agency on questions of policy and

law, as Rossi suggests, would promote a broader understanding of the law and
render the decision-making process less prone to the arbitrary action of individual

executive adjudicators.

170. Rossi, supra note 1 18, at 70-73.

171. Mat 74.
172. Id.



2005] EXECUTIVE BRANCH ADJUDICATION 477

VI. Recommendations and Conclusion

Executive branch adjudicators are well possessed of the resources and the

skills to serve the nation and its states in times of emergent threats to public

safety. Due process tradition has long been entrusted to the "fourth branch"
adjudicator, for reasons that include the ability to assemble rapidly, adapt to

exigent conditions, and render prompt decisions fairly, doing so all in a manner

that is open for all to see. There is every reason to believe that with forethought

and diligence, lawmakers will be able to repose in the executive branch

substantial fact-finding and decision-making power as the need arises,

particularly with respect to legislation designed to protect the public from threats

to health and safety.

An essential resource now lacking is a meaningful and comprehensive
database reflecting ALJ utilization at the state level. Our lawmakers, working
both as separate state sovereigns and working collectively, would benefit from a

better understanding of how individual states use ALJs, Equally important, we
would all benefit from knowing how administrative adjudication processes are
regarded by the public. These adjudications are, in large part, successful only if

the public has trust and confidence in the fairness of the proceedings. As
politically accountable players in this process, agencies, too, have a stake in this,

and they expect the process to be not only fair but effective.

When lawmakers create legislative schemes designed to respond to new
threats to public safety, their actions must be guided by the collective experiences

of existing administrative adjudication systems. Guided by these experiences and

armed with current and accurate ALJ utilization data, lawmakers would then be
in a position to create fair and effective health and safety laws—laws that take
into account the organizational structure of the executive adjudication system, the

strengths and weaknesses of its adjudicators, the hierarchy of authority, and the

role of the judiciary in serving as an effective check on the executive branch in

administrative adjudications.