Vested Rights, “Franchises,” and the Separation of Powers

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Modern courts and commentators have had trouble distinguishing the kinds of decisions that require “judicial” power from the adjudicative tasks that Congress can authorize administrative agencies to perform in the course of “executing” federal law. In a prior article (Adjudication in the Political Branches107 COLUM. L. REV. 559 (2007)), I sought to explain traditional doctrines on that topic. For much of American history, Congress could authorize executive-branch agencies to administer and dispose of “public rights” belonging to the federal government or the people collectively, and Congress also could give agencies conclusive authority with respect to the administration of “privileges” that federal law gave private individuals or entities. But the political branches did not have similar sway over vested private “rights.” Only true courts could conclusively determine either that a private person had forfeited such rights or that the claimed rights had never vested in the person to begin with.

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