Many Americans are surprised to discover that agencies can both enforce and adjudicate administrative violations. And under governing Supreme Court case law, agencies can also develop new regulatory standards through adjudication. This means that American citizens can find themselves liable for conduct that the agency didn’t prohibit until after they acted. (President Donald Trump issued Executive Order 13892 to bar agencies from imposing liability for conduct not clearly unlawful at the time, but President Joe Biden rescinded that order.)
That should concern anyone who cares about the rule of law, for it allows agencies to target people and then make the crime fit the punishment, adapting the law to prohibit whatever they discover those people have done. It also allows agencies to use enforcement and adjudication to develop policy rather than to do justice.
One important safeguard against this abuse is the division between enforcement and adjudication personnel at agencies. Thankfully, the same staff typically cannot both enforce the law against someone and also decide whether he or she has violated it.
But the rule is different for agency heads, who often have the final say both about whether to enforce the law against someone and whether to impose administrative penalties. That is like the county prosecutor presenting the case for conviction and then climbing into the jury box.
[Two points: First, we’re long overdue for such reform, and indeed a much tighter rein on federal agencies in general. Second, this isn’t the time, unfortunately. We’d need a Republican president truly interested in reducing executive power along with a Republican Congress interested in anything other than the trough. 2025 is our next window. — Ed]
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