Harrison on Public Rights and Article III

John C. Harrison, University of Virginia School of Law, has posted Public Rights, Private Privileges, and Article III, which is forthcoming in the Georgia Law Review:

This article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. As the Justices are aware, the public rights rationale originated in the 19th century, and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. In light of the Court’s evident interest in the 19th century system, this article explores that system in depth and seeks to identify the ways in which it authorizes and limits executive adjudication. The older system focused on public rights, private rights, and private privileges. The courts protected the private rights they found in the primary law, including federal statutes that created such rights. Private privileges, unlike private rights, could be affected by the unilateral exercise of a proprietary right of the government – that is, by the exercise of a public right. The interest in receiving a payment from the Treasury was a classic example of a private privilege, provided Congress had not given the private recipient a judicially enforceable claim to it. When the executive administered the government’s own legal interests according to the law, it often performed a function that resembled adjudication. That function was nevertheless an exercise of executive power, because executive officials act for the government as proprietor and contracting party. Executive adjudication thus was permissible under the older system when Congress created the relation of public right and private privilege. Whether Congress may do so depends, like other questions concerning congressional power, on the scope of Congress’s enumerated powers and the affirmative limitations on it. The article identifies the questions concerning congressional power that must be answered in order to decide when Congress may create the relations that underwrite executive adjudication under the older system, and shows that the scope for that form of decision making may be quite broad. One constitutional rule is notably absent from the list of constraints: the vesting of the judicial power in the courts by Article III. The constitutional function of the courts is to protect rights. Under the older system, whether a private person has a right with respect to any specific interest depends on the primary law, not Article III. The judicial power took public rights, private rights, and private privileges as it found them.