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The President’s Prerogative Courts

March 28, 2024

The Star Chamber.  Even 383 years after its abolition, merely invoking its name brings a vague thrum of apprehension.  Not a spike of fear; no, it’s nothing quite that bracing.  More of a distantly remembered wrongness, a subliminal but constant worry that the ground might shift—without warning, without reason, without recourse.  And through some trick of cultural memory, it still evokes the souring indignity of helplessness before an implacable power.

Fortunately, the chill passes in an instant.  It always does.  After all, we learned the hard lessons long ago, and created the structural barriers that vouchsafe against a repeat of those uncertain days.  We separated the three great powers so that one branch can’t, all by itself, legislate, prosecute, and adjudicate.  We committed the trying of facts to juries of our peers so the government can’t own the historical narrative.  We are secure because the rules are secure, and the rules are secure because the Constitution says they are.  So all is well.  Then you receive notice that one of the many federal alphabet agencies is investigating you, and the thrum of apprehension comes back as a spike of fear . . .

But why?  We are told (usually with a hint of impatience) that agency legislators are subject-matter experts who act only in our collective best interest, that agency prosecutors are disinterested and professional, and that agency judges are better at trying facts than the juries and judges authorized by the Constitution.  This is supposed to instill in us a settled confidence, an equanimity born of the sure knowledge that these combined powers are the instruments of swift and certain justice.  And yet, somehow, it doesn’t.  Instead, there is the fear—inchoate, protean, restless . . . a 400 year-old tap on the shoulder.

It is a commonplace that time pacifies all things, but as J.R.R. Tolkien once wrote, “some things that should not have been forgotten were lost. History became legend. Legend became myth.”  The Star Chamber is approaching mythical status, a short step before forgetfulness and loss of its trenchant lessons.  So while we still remember, let’s recount some of what made it such a bogeyman in our political history.  Maybe then we’ll know why its memory keeps tapping us on the shoulder.

The King’s Privy Council, when it sat as a court, did so in a room known as the “Star Chamber.”[1]  There, it exercised judicial power parallel to the common law courts.  Its reach was vast:  “In a word, there is no offense punishable by any law, but if the court find it to grow in the Commonwealth, this court may lawfully punish it, except only where life is questioned.”[2]  This was the most powerful of the king’s prerogative courts.  And while its remit was originally judicial, that limitation did not last.

Power wants to be centralized, and so it came to be that Parliament, which was not immune to the inscrutable allure of giving away legislative authority, adopted the Statute of Proclamations in 1539.  This act formally conferred on the Star Chamber a power that had previously only been “a vague prerogative of the crown”—the authority to issue and enforce proclamations, including “the regulation of trades and businesses.”[3]  This has been characterized as “no less than an outright delegation to the crown of Parliament’s right to legislate on any subject,” so long as it did not contradict the common law or acts of Parliament.[4]  Call it, perhaps, an early English-Renaissance Administrative Procedure Act.

Maybe the reason the administrative state seems so ominously familiar is that the Star Chamber was its prototype—a prerogative body exercising legislative, executive, and judicial authority.  Modern administrative agencies, which are nothing but particularized expressions of presidential authority (what some denominate “presidential prerogatives”), are just updated versions of the original.  The president’s agencies make the law, the president’s attorneys prosecute violations, and the president’s judges adjudicate the disputes.

So we may as well call these agencies what they actually are when they decide contested cases between citizens and their government.  They are the President’s Prerogative Courts.  His laws, his attorneys, his judges, no juries.  And the judiciary—the real judiciary, the one created by the Constitution—has allowed this parallel court system to germinate and grow and steal the power the people vested solely in Article III tribunals.

What happens when we tolerate a governmental structure that allows one branch to exercise all three of the great powers?  The same thing that happened before.  When the British eventually rid themselves of the Star Chamber, they left us a record of the abuses they found intolerable.  Here are a few they listed in the parliamentary act known as the “Abolition Of The Star Chamber”:

“[T]he said judges have not kept themselves to the points limited by [law], but have undertaken to punish where no law doth warrant, and to make decrees for things having no such authority”;

“[T]he proceedings, censures and decrees of that court, have by experience been found to be an intolerable burthen to the subjects, and the means to introduce an arbitrary power and government”; and

“[T]he council-table hath of late times assumed unto itself a power to intermeddle in civil causes and matters only of private interest between party and party, and have adventured to determine of the estates and liberties of the subject, contrary to the law of the land and the rights and privileges of the subject . . . .”[5]

If we modernize the English, we readily see the modern instantiations of these grievances.  Chevron[6]deference results when the President’s Prerogative Court demands that an agency be allowed a legislative field more expansive than explicitly granted by congress.  Brand X[7] confirms that Prerogative Courts can effectively overrule a real court’s interpretation of the law, which is pretty much the definition of “arbitrary power and government.”  Crowell[8] and Atlas Roofing[9] were cessions of authority to the Prerogative Courts over “civil causes and matters only of private interest between party and party.”  And the pièce de résistanceof the reincarnated Star Chamber is that it—not a jury, not a real court—is the exclusive trier of facts.  Ironically (or, perhaps, fittingly), the justification for this arrangement rests on the distinctly monarchical “sovereign immunity” doctrine, which asserts that the legality of agency actions can be questioned only in the Prerogative Courts, unless Congress chooses otherwise.

So when you receive notice that you’ve attracted the attention of an alphabet agency, that spike of fear is not irrational.  It is our cultural memory reminding you that we’ve been here before, and that it didn’t turn out well for either the individual or the prerogative court.  We want our courts and our juries to decide contests between citizens and their government, not the President’s Prerogative Courts.

 


[1] Sources of Our Liberties 126 (Richard L. Perry, rev. ed. 1991) (citing William S. Holdsworth, I A History of English Law486 (4th ed.,1931).  Whether the court took its name from the room, or the room from the court, is a matter lost to time.

[2] Id. at 129 (quoting William Hudson, “A Treatise on the Court of Star-Chamber,” II Collectanea Juridica 117-18 (Francis Hargrave ed., 1791).

[3] Id. at 130.

[4] Id. at 129-30.

[5] V, 110: 16 Charles I, c.10.

[6] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).

[7] Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 973, 125 S. Ct. 2688, 2695, 162 L. Ed. 2d 820 (2005).

[8] Crowell v. Benson, 285 U.S. 22, 36, 52 S. Ct. 285, 286, 76 L. Ed. 598 (1932).

[9] Atlas Roofing Co., Inc. v. Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 97 S. Ct. 1261, 51 L. Ed. 2d 464 (1977).