Carr v. Saul & Davis v. Saul

Constitutional challenges must be heard by courts of law

Amicus Briefs > Separation of Powers > Carr v. Saul & Davis v. Saul

This case addresses a basic issue—who in the government is authorized to hear constitutional challenges? 

The Constitution divides the government into three branches—Legislative, Executive, and Judicial—and only the Judicial Branch is allowed to decide questions of constitutional law. The matter can become somewhat complicated, since Executive Branch agencies such as the Social Security Administration (SSA) may resolve disputes over government benefits, and disappointed beneficiaries may appeal the SSA’s decision in federal court. So, what happens when an individual disputing an award of benefits also claims that the Executive Branch official overseeing the dispute—in this case, an administrative law judge (ALJ) in the SSA—is acting unconstitutionally? 

The ALJ himself cannot resolve that question. Therefore, does a challenger still have to raise the issue to the ALJ in the first instance, or may a challenger wait until the matter goes to federal court? Courts have often held that, if someone does not raise an issue during an ALJ proceeding—even a constitutional issue that the ALJ is powerless to consider—he cannot later raise that argument in court. This is known as an “exhaustion” requirement: parties may be required to “exhaust” all issues during the administrative process before raising them in court.  

In our friend-of-the-court brief, PLF argues that the Supreme Court should allow parties to bring up constitutional issues in court, even if they did not raise those issues to the ALJ.  

  • As Chief Justice John Marshall confirmed long ago, it is “emphatically” the independent and exclusive “province and duty of the judicial department to say what the law is.” Therefore, according to the Supreme Court, Congress “cannot vest any portion of the judicial power of the United States” anywhere “except in courts ordained and established by itself.” 
  • Here, the government conceded that ALJs do not have the power to resolve constitutional questions, but it nonetheless argued that claimants for social security benefits must still exhaust all constitutional issues before the ALJ or forever lose the chance to present those arguments in court. The government emphasized the efficiency of its proposed rule. 
  • As PLF argues, however, any practical gains do not trump the Constitution’s separation of powers and that doctrine’s protection for individual rights and security. Individuals are entitled not just to substantive benefits; they are also guaranteed due process.  
  • While claims for social security benefits may not often raise significant due process issues, the Court’s holding affects all Executive Branch agencies’ actions—including agencies such as the Securities and Exchange Commission and the Consumer Financial Protection Bureau, both of which exercise significant investigative and prosecutorial powers.  
  • The Court’s ruling here will also impact many state and local agencies’ behavior, as they likewise exert wide discretionary authority on issues ranging from land use (for example, zoning regulations and disputes) to business licensing.  
  • In short, individuals have a right to have their constitutional challenges heard by independent judges in the Judicial Branch and should not have to waste their time and resources “exhausting” such issues with administrative agencies that lack the power to resolve the claims in the first place.  

PLF regularly participates as amicus curiae, or friend of the court, in cases brought by others. This supplements our direct representation cases by providing judges with unique, strategic, and helpful arguments to consider when crafting their opinions. 

Related Documents

PLF regularly participates as amicus curiae, or friend of the court, in cases brought by others. This supplements our direct representation cases by providing judges with unique, strategic, and helpful arguments to consider when crafting their opinions in related cases

PLF Amicus Brief

January 04, 2021 Download

What’s at stake?

  • At stake is the opportunity to challenge and rein in the alphabet soup of Executive Branch agencies—federal, state, and local—that exercise broad, discretionary, and too often unreviewable power.
  • Individuals and small businesses will benefit from putting these administrative agencies under the judicial microscope.

Brief Authors

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