The Administrative Evasion of Procedural Rights

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties. In contemporary doctrine, due process and most other procedural rights are understood mainly as standards for adjudication in the courts. Traditionally, however, they were understood, at least as much, to bar adjudication outside the courts. That is, they were understood to block evasions of the courts and their procedural rights. Nonetheless, administrative power evades procedural rights – not only in agency tribunals but also in the courts themselves. The resulting administrative adjudication gives the government ambidextrous paths for enforcement. And it thereby transforms procedural rights from constitutional guarantees into mere options for government power. Turning to theory, this argument about procedural rights is part of a broader thesis about the nature of administrative power. Current doctrine and scholarship presents administrative power as an expression of law, but it makes much more sense to understand it as power – a sort of power that flows in a cascade around pre-existing structures and rights, whether established by the Constitution or the Administrative Procedure Act. Despite its pretense of being administrative “law,” it really is a mode of evasion. Overall, the administrative evasion of procedural rights illustrates how seriously administrative power threatens civil liberties. Whatever one thinks of administrative power as a structural or sociological matter, it is also a civil liberties problem