Discourse: Oppenheimer’s Unlikely Indictment of the Administrative State
Christopher Nolan’s “Oppenheimer” was an unusual summer blockbuster. A three-hour biographic period piece about a theoretical physicist (J. Robert Oppenheimer), the film features extended discussions of quantum physics, complex mathematics and Cold War politics. Despite telling the story of the creation of the atomic bomb, the film is organized around an administrative hearing on Oppenheimer’s fitness to hold a security clearance. The retelling of a half-century-old bureaucratic knife fight is not the usual fare for big-budget films. And yet, “Oppenheimer” opened to more than $80 million domestically and has grossed more than $318 million in the United States to date.
Hollywood is an unexpected place to find a trenchant critique of the administrative state, yet “Oppenheimer” is just that. Not surprisingly, much of the film’s drama comes from America’s development of the atomic bomb—and the moral questions surrounding its creation and use no doubt have fueled many debates in car rides home from the theater. But the story of the secret—and what turned out to be rigged—hearing on Oppenheimer’s security clearance is captivating in its own right. And yet it is a story that is likely familiar to many Americans who have had the federal government come after them, their integrity and their livelihood through administrative processes stacked in the government’s favor.
Administrative Abuses
The review of Oppenheimer’s security clearance that drives “Oppenheimer” took place in 1954 before a Personnel Security Board of the Atomic Energy Commission (AEC). After a confidential—and adversarial—hearing, the board concluded that Oppenheimer was a loyal American but presented too much of a security risk to hold a clearance. That decision was upheld by the AEC itself.
Several administrative abuses are dramatized in the film. In an opening scene, Oppenheimer (Cillian Murphy) addresses the board as “your honor” only to be corrected that the board is not made up of judges. Instead, the board members were hand-picked by the agency that was seeking to strip Oppenheimer’s security clearance. Oppenheimer’s attorney, Lloyd Garrison (Macon Blair), is denied access to classified evidence marshaled against Oppenheimer. And Oppenheimer is denied access to the list of the prosecution’s witnesses in advance of their testimony. Toward the end of the movie, it is revealed that then-Chairman of the AEC Lewis Strauss (Robert Downey, Jr.) orchestrated the security review to punish Oppenheimer for his opposition to the hydrogen bomb and his earlier personal humiliation of Strauss.
In reality, the security review involved even more administrative abuses than were depicted in the film. In a 1990 Stanford Law Review article, Stanford history professor Barton Bernstein explains that Strauss likely chose board members for the hearing based on their perceived hostility to Oppenheimer. Strauss set up the hearing as an adversarial prosecution in violation of the AEC’s own standards. Furthermore, he provided the prosecutor with information about Oppenheimer’s defense collected from FBI wiretaps. If that were not bad enough, Strauss himself was one of the five members of the AEC who heard Oppenheimer’s appeal and affirmed the stripping of his security clearance.
“Oppenheimer” repeatedly references the lack of any procedural protections that would have been afforded Oppenheimer in a court. Strauss pointedly says that the AEC is not convicting Oppenheimer of anything, it is “just denying” his security clearance. Of course, it was sensible for the review of Oppenheimer’s security clearance—a government-granted benefit of access to America’s nuclear secrets—to be decided in a confidential in-house process. But the abuses that took place are a cautionary tale about what can occur when federal agencies adjudicate their own charges against Americans without the procedural protections afforded by a court organized under Article III of the U.S. Constitution.
Denying Americans Their Fundamental Rights
Administrative adjudications very similar to the one portrayed in “Oppenheimer” are pervasive. Dozens of federal agencies—including the U.S. Department of Agriculture, the Environmental Protection Agency, the Federal Trade Commission and the National Credit Union Administration—use in-house tribunals to adjudicate their civil claims. The same agency investigates you, decides whether to bring charges against you, serves as both the prosecutor and judge, and establishes the rules by which the entire process takes place.
Moreover, agency adjudications deny defendants the most fundamental protection in our judicial process: a jury. The right to a jury in civil cases is protected by the Seventh Amendment, and the constitutional protection of juries is a recognition of their role in ensuring that we are not unjustly denied our life, liberty or property on the whim of a government minister. But agency adjudication eliminates that protection entirely and encourages unaccountable caprice in the enforcement of the law. In that respect, Americans who find themselves trapped in these in-house proceedings are in much the same position as Oppenheimer.
Take the case of Leachco, Inc., which is currently represented by the Pacific Legal Foundation, where I work. Leachco is a small, family-owned baby products company based in Oklahoma. Its owners, Jamie and Clyde Leach, started the company because of their concern for the safety of babies. But the Consumer Product Safety Commission (CPSC) claims that Leachco’s Podster® infant lounger is defective because it is reasonably foreseeable that caregivers will ignore the company’s specific warnings to only use the product with awake and supervised infants.
The CPSC filed a complaint against Leachco seeking a determination from itself that the product poses a “substantial hazard” and an order that Leachco pay damages to purchasers and cover third-party costs arising from removal of the product from the market. In August, the case was heard by an administrative law judge (ALJ) selected by the CPSC for this case. And in the event that Leachco must appeal the ALJ’s decision, that appeal goes to the CPSC commissioners. While a federal court can review the CPSC’s final decision, that review will only happen after years of litigation, the Article III judges will give deference to certain decisions by the ALJ, and a jury will never be involved. The Leaches should not be forced to defend themselves in this inherently unfair process.
But Americans are fighting back against administrative adjudications across federal agencies by suing those agencies. Certified public accountant Michelle Cochran challenged the Securities and Exchange Commission’s internal hearing process in which it was pursuing her for alleged violations of auditing standards in the Securities Exchange Act. Axon Enterprises, which produces policing equipment, sued the Federal Trade Commission to stop it from adjudicating before itself allegations that Axon engaged in unfair methods of competition. Both lawsuits made it to the U.S. Supreme Court. And in April, the court allowed Axon, Cochran and all Americans trapped in internal agency tribunals to challenge the tribunals’ constitutionality without having to suffer through the entire process.
The story of Oppenheimer is certainly sensational and unique. But, just as for Oppenheimer, agency adjudications are of critical importance to the Americans embroiled in them who are fighting for their reputations and livelihoods. All Americans are entitled to a fair hearing when the government brings charges against them. But that is not what they receive when the government decides to adjudicate those charges before its own bureaucrats because—as “Oppenheimer” reminds the audience again and again—in-house tribunals are not courts.
This op-ed was originally published at Discourse Magazine on September 28, 2023.
