Baumann and Shugerman on Quasi-Judicial: A History and Tradition

Beau J. Baumann, Yale Law School, and Jed H. Shugerman, Boston University School of Law, have published Quasi-Judicial: A History and Tradition. Here is the abstract.

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from hierarchical control and presidential removal. Americans expect judge-like independence when politicians grant administrators judge-like powers and functions. The quasi-judicial category deployed in Humphrey's was the logical extension of English legal customs, Founding Era administration, and the evolution of the ninteenth-century law of officeholding. It reflected an Anglo-American instinct to insulate judge-like offices from direct hierarchical control. Whether you are an originalist or a believer in the history-and-tradition approach, these findings show that Congress may insulate quasi-judicial officials from presidential removal and direction. Beyond original public meaning, the quasi-judicial function from Humphrey's is bound up with the Anglo-American constitutional project stretching back beyond the Founding. If the Roberts Court overrules Humphrey's, it will imperil a primordial instinct that is part of our rule-of-law tradition.

Download the article from SSRN at the link.