The Washington Post has a very interesting article, which highlights the increased deferment of cases to government agencies. Instead of going through the court system, many cases are increasingly going through administrative agencies instead.
The question posed here is whether the right for court accessibility being challenged? The Washington Post raises its concerns:
The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is just not bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.
The Washington Post reports that the vast majority of laws governing the United States are not passed by Congress but are issued as regulations. A study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.
The Washington Post also reports that a citizen is 10 times more likely to be tried by an agency instead of an actual court. While federal judges conduct roughly 95,000 adjudicatory proceedings (including trials), federal agencies complete more than 939,000.
However, there are several items the Washington Post fails to mention. The increasingly use of administrative agencies does not only fall upon the agency.
Take for example the individual’s decision to file a charge/claim. Going through administrative agencies is more cost-effective. Lawsuits in court have become more expensive. Technology, electronic evidence, growth in documents and companies, among others, lead to a higher volume of issues and motions that increase the cost of litigation. Given both alternatives, it makes sense that an individual might choose to go through an administrative agency.
For example, an individual going through the EEOC for a discrimination charge does not have to pay anything. While an individual going through the court system may have to pay attorney fees and might be responsible for attorney fees.
Saying that, however, the issue of transparency and timing is highly concerning. Administrative decisions are not public. In addition, the length of an administrative decision might take several years.