In an earlier issue of the present volume of the Review, an effort was made to dispel the seeming absurdity that "Separation of Powers, the cardinal principle upon which the federal and all state governments are founded, a great American contribution to the science of government, violates the due process clause!" The quotation is from an able and exhaustive article on Judicial Review of Administrative Action in West Virginia, written by Kenneth Gulp Davis at the beginning of a teaching and writing career which has brought him preminence in the field of Administrative Law. The article appeared in Volume 44 of this Law Review. There is yet another paradox which has been of equal perplexity for Professor Davis and other scholars in the field of administrative law. This paradox is the seeming inconsistency in judicial views, especially on the part of the Supreme Court of the United States, Regarding the degree of finality to be accorded administrative findings of fact. In many situations the courts allow the administrative finding of fact to stand if supported by substantial evidence; yet in other instances, and arguably for no good reason, courts demand an independent judicial judgment on the facts or even a judicial trial de novo. For this confusion Professor Davis in his article faulted "an abstraction known as the doctrine of separation of powers," concluding a hundred pages later that "Due process and other provisions of the bill of rights constitute adequate safeguards against arbitrary action; the theory of separation of powers is not a satisfactory tool to use for this purpose." Although the use, or misuse, of the doctrine has been a contributing factor, as Professor Davis showed for this State, a full explanation of this paradoxical judicial behavior must be found by distinguishing between two different judicial acts, each of which, unfortunately, is known as judicial review.
Frank R. Strong,
Judicial Review: A Tri-Dimensional Concept of Administrative-Constitutional Law,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol69/iss3/3