Administrative adjudication’s partiality problem is a worthy candidate to join these claims for three reasons. First, prohibiting administrative adjudicators’ partiality, unlike some other structural areas, does not require overruling prior decisions and relies heavily on the Court’s recent precedent. Second, partiality challenges fit comfortably within the Court’s penchant for formalism and prophylaxes in structural constitutional matters. Indeed, formalism is much more justified for partiality challenges than certain other structural issues and has a longer jurisprudential provenance. Finally, as compared to other proposed challenges to the administrative state, challenges based on administrative partiality are more likely to earn enough votes to succeed. Because finding partiality within the administrative state would likely have significant, widespread disruptive effects, the President, agencies, and Congress should rethink administrative adjudication before courts make them do so.
Why Bias Challenges to Administrative
Adjudication Should Succeed,
81 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol81/iss4/9