Washington — A Case for Ending Agency-Run Courts Gains Ground

Opinion. An essay published by The Regulatory Review makes the case that federal agencies should stop deciding disputes in-house and send more matters to Article III courts, arguing that agency adjudication lacks the fairness and legitimacy of the judiciary the Constitution actually created, according to the essay. The argument lands in an already active conservative legal fight over how much judicial power an executive-branch agency should be allowed to keep for itself.

What Is Agency Adjudication?

Agency adjudication is the practice of a federal agency deciding its own enforcement cases through an internal proceeding rather than sending the dispute to a federal district court. The agency writes the rule, brings the charge, and then supplies the judge who decides whether the rule was broken. Defenders call it efficient. Critics call it a conflict of interest built into the org chart.

What Does The Essay Argue?

The Regulatory Review piece contends the time has come to give up on the model altogether, arguing that in-house administrative proceedings do not carry the fairness or legitimacy of proceedings before judges appointed under Article III of the Constitution, who hold life tenure and salary protection specifically so they can rule against the government without fear of losing their jobs. Agency adjudicators, by contrast, work for the same institution that is prosecuting the case in front of them.

Why Do Critics Say Agency Courts Fall Short?

The structural objection is simple: an agency employee deciding a case brought by that same agency is not positioned the way an independent judge is. Article III judges answer to no one for the outcome of a given case. Agency adjudicators, whatever their individual integrity, sit inside a chain of command that set the policy being enforced. That is the gap the essay says has grown too wide to paper over with procedural fixes, and it is the same gap that has animated years of litigation asking whether Congress can hand core judicial functions to the executive branch at all.

What Do Defenders Of Agency Adjudication Say?

The case for keeping adjudication inside agencies rests on capacity and expertise. Federal district courts are not staffed to absorb the volume of specialized disputes agencies currently resolve — securities enforcement, benefits claims, licensing fights, labor complaints — and agency adjudicators typically have technical fluency in a narrow area that a generalist district judge would have to acquire case by case. Moving that volume wholesale into Article III courts would mean longer dockets and slower resolutions for the people the process is supposed to serve, a practical cost that does not disappear just because the constitutional theory is tidier.

That trade-off is real, and it is the honest reason agency adjudication has survived this long despite the structural critique. The question the essay poses is whether efficiency is worth the price of letting the same institution write, enforce, and judge its own rules — and on that question, the fairer position is that efficiency should lose. A government that both makes the rule and decides whether it was broken is not a neutral arbiter, no matter how competent its staff, and competence has never been the constitutional test for who gets to exercise judicial power.

How Does This Fit The Broader Fight Over The Administrative State?

The debate did not start with this essay and will not end with it. It sits inside the same federalism argument that asks how much authority ought to concentrate in Washington versus be checked by independent institutions, a question laid out in a broader federalism explainer. It also sits beside a moment of heightened public attention to who gets to sit in judgment and under what rules — Wisconsin's Supreme Court held off this month on suspending Milwaukee judge Hannah Dugan's law license, a separate dispute but part of the same national conversation about judicial accountability. Meanwhile, separate reporting on a rise in U.S. election fraud cases reflects a broader public appetite for scrutinizing whether official processes are actually neutral.

What Comes Next?

No court has ordered agencies to dismantle their adjudication systems wholesale, and the essay is a scholarly argument rather than a legal filing. But it adds another data point to a debate that keeps resurfacing in Congress and the courts: whether an agency judging its own case is a shortcut government cannot afford to keep taking. The structural argument is not new, but it does not get weaker with repetition — it gets harder to answer.