Deciding Without an Appointment: Examining the Appointments Clause and Administrative Arbitration
Through its recent Appointments Clause and administrative law jurisprudence, the Supreme Court has applied a formalistic view of the separation of powers that is rapidly remaking the administrative state. Specifically, the Court has spearheaded an important debate on what level of executive accountability is constitutionally required in agency adjudications. Still, despite these updates in constitutional and administrative law, it has been over two decades since any significant scholarly discussion of agencies’ use of binding arbitration under the Administrative Dispute Resolution Act of 1996. This Note analyzes the Court’s appointments jurisprudence and whether administrative arbitrators constitute an Appointments Clause violation. This Note further investigates the policy merits of administrative arbitration and calls for legislative and administrative reforms to the system.
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