For 9/29, we begin discussing agency authority to adjudicate. Skim Crowell v.
Benson (posted) and read pp. 172-80 in the textbook. While reading these materials,
keep in mind the following questions:
1. Crowell is necessary background but we will focus on Schor.
2. Does Article III allow any arm of the government other than the judiciary to
exercise judicial power?
3. What test does Schor use to determine whether agency adjudications violate
Article III? Is Schor a workable approach to determining when agencies can
adjudicate consistent with Article III? To what extent does Schor still cling to
aspects of Crowell.
4. According to Schor, the purposes underlying Article III are critical to assessing
the constitutionality of agency adjudications? What are the purposes of Article III
courts? When do agency adjudications threaten those purposes?
5. Consider the following hypothetical which helps us to put Schor into action.
Does the agency’s action violate the Court’s standard in Schor?
The EPA requires companies that incinerate hazardous waste to get a permit. To get
a permit, a company initially applies to the EPA section in the Region where the
incinerator is located. If the Region denies the permit, the company can appeal to an
Environmental Appeals Board (“EAB”), an administrative tribunal within the EPA.
If the EAB upholds the denial, the company can seek review by the Administrator of
the EPA. If the Administrator upholds the denial, the company may seek judicial
review in an Article III court.
Hazardous Waste Management, Inc. (“HWM”) was denied an incinerator permit
at all levels mentioned above. HWM filed a lawsuit in federal court challenging the
denial and claiming that the scheme violates Article III by unconstitutionally
delegating judicial power to non-article III entities (Region, EAB, and
Administrator). How will this come out under Schor?
6. Try to get a handle on the Atlas Roofing case and the right to jury trial when
agencies adjudicate. To what extent does Crowell’s public right/private right
distinction play a role in the Court’s conclusion?