fbpx

Presidential Removal and Administrative Law Judges

I have been blogging about the constitutionality of administrative law judges (ALJs). The essential problem in these cases is a conflict between two basic facts: (1) ALJs are a central part of how modern administrative law attempts to provide what its defenders see as a legitimate form of government and (2) the possibility that the ALJ system is inconsistent with the Constitution’s separation of powers — in particular, the President’s removal power.

Under existing administrative law, ALJs are an attempt to introduce an element of impartiality into the system. Formal agency adjudication typically occurs before an ALJ, who is not removable by the agency. Instead, the ALJ is removable only for cause (such as wrongdoing) by the Merit Systems Protection Board, which itself is an independent agency whose board members are only removable for cause. Thus, ALJs allow a private party before the agency to be subject to adjudication by an independent official rather than by the arguably politically biased agency.

The problem is that ALJs might be unconstitutional under the separation of powers — on the ground that they should be subject to presidentially controlled removal. Under the Constitution, the President as the chief executive is thought to have significant authority to supervise executive officials. A substantial number of originalist scholars believe that the President possesses constitutional authority to control all executive officials. While precedents under existing law allow many executive officials to be made independent of executive control (such as Humphrey’s Executor and Morrison v. Olson), the Supreme Court still places limits on such independence.

The most important such limit on agency independence in this context was announced in the case of Free Enterprise Fund v. Public Company Accounting Oversight Board. That case held that while Congress could establish an independent agency (in some contexts), it could not establish a double for cause removal provision – that is, an official who is removable for cause cannot be subject to removal only by another official who is removable for cause. In Free Enterprise Fund, the SEC was an independent agency, whose commissioners could only be removed for cause. The Public Company Accounting Oversight Board (PCAOB) was another entity, whose members could only be removed for cause by the SEC. The Supreme Court said the arrangement was unconstitutional. While it was constitutional to have one level of for cause removal protection, having two was unconstitutional. Thus, the PCAOB had to be subject to removal without cause by the SEC.

While ALJs serve in an adjudicative role, they are normally thought of as executive officials. And as executive officials, the constitution imposes some limits on the degree to which they can be insulated from presidentially controlled removal. Under the existing regime, ALJs can only be removed if the Merit System Protection Board, which is removable only for cause, concludes that the ALJs committed an infraction that provides cause for removing them. This appears to be a double for cause removal provision and thus to conflict with the holding of the majority opinion of Free Enterprise. Thus, there is a strong argument that ALJs are unconstitutional under Supreme Court precedent.

But the majority in Free Enterprise Fund said it was not reaching the question of the constitutionality of the removal provisions of ALJs and I am skeptical that the Court will strike them down. In my view, it would require too much of a departure from existing practices – seeming to eliminate the independence of ALJs.

Instead, I believe the Supreme Court will conclude that the removal protections of ALJs are constitutional. I predict the Court will pursue one of several alternatives that would save ALJs, such as concluding that quasi judicial inferior officers like ALJs can be subject to removal restrictions. This would be consistent with the overall approach of modern separation of powers law – imposing limited restrictions on government that do not require significant departures from existing practices.

Unfortunately, I don’t believe this is the optimal approach. The conflict between executive power and adjudicative impartiality is a significant one that existing administrative institutions cannot solve. But there is a superior way: As I argue in this paper, one can have both independent adjudication and executive supervision of agencies by establishing Article III Administrative Judges who would be independent of executive control, but who would have expertise to adjudicate administrative cases.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 07, 2018 at 11:44:41 am

It would seem this would also require the Court to find (not defer), that ALJ's are in fact independent and unbiased, where able evidence exists to suggest otherwise. I think you are correct, there must be a shift from ALJ to Art. III courts, whatever the ultimate form it would take.

read full comment
Image of Paul Binotto
Paul Binotto
on March 07, 2018 at 12:49:52 pm

Let's see what precedent is on removability of quasi-judicial executive officers:

Myers v. United States, 272 U.S. 52, 135(1926): "Then there may be duties of a quasi judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control. But even in such a case he may consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been on the whole intelligently or wisely exercised. Otherwise he does not discharge his own constitutional duty of seeing that the laws be faithfully executed."

The First Congresses discussions of the Comptroller of the Treasury which was described as quasi-judicial. James Madison proposed that he have tenure for "good behavior" but said that "the Comptroller would be dependent upon the President, because he can be removed by him."

Attorney General John J. Crittenden 5 U.S. Op. Atty. Gen. 288, 290 (1851): "The President of the United States is not only invested with authority to remove the Chief Justice of the Territory of Minnesota from office, but it is his duty to do so if it appear that he is incompetent and unfit for the place. . . . Being civil officers, appointed by the President, by and with the advice and consent of the Senate, and commissioned by the President, they are not exempted from that executive power which, by the constitution, is vested in the President of the United States over all civil officers appointed by him"

He described this opinion as "has been long since settled, and . . . has ceased to be a subject of controversy or doubt."

In McAllister v. United States, 141 U.S. 174 (1891). the Supreme Court accepted presidential removal of territorial judges at will (not including them in the statutory limitation of "judges of the courts of the United States”).

The DC Circuit in Kuretski v. C.I.R., 755 F.3d 929, 941 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 2309 (2015) wrote: "A tribunal may be considered a ‘Court of Law’ for purposes of the Appointments Clause notwithstanding that its officers may be removed by the President. The Freytag Court’s treatment of territorial courts confirms the point.”

read full comment
Image of Devin Watkins
Devin Watkins
on March 07, 2018 at 13:16:38 pm

Interesting supplemental to the post; but isn't this what is a large part of the (constitutional) issue with ALJ's, that in most(all)cases they are not appointed by advice & consent? Do these above opinions reach non-appointed civil servants?

read full comment
Image of Paul Binotto
Paul Binotto
on March 09, 2018 at 12:30:18 pm

Well, I think the critical question is, are "ALJ's officers of the United States?" Lucia will answer that this term. If they are (as I believe them to be a brief that I wrote), then they wield the power that must be under the control of one of the three branches of government.

read full comment
Image of Devin Watkins
Devin Watkins
on March 09, 2018 at 12:30:55 pm

By the way, if they are "ALJ’s officers of the United States," then the Constitution requires that they be appointed.

read full comment
Image of Devin Watkins
Devin Watkins
on March 09, 2018 at 13:06:16 pm

Thanks for following-up. I think they are officers, too. I read a brief by NCLA related to Lucia. Should be interesting to see how SCOTUS rules, narrowly or broadly. I would have thought that ruling them to be officers would apply broadly to all ALJ's, not just SEC, but I have been told that isn't necessarily so. I will check out your brief, too. Thanks again.

read full comment
Image of Paul Binotto
Paul Binotto
on March 09, 2018 at 13:12:40 pm

I thought I recalled you having linked your brief to an earlier posting, and looking back I found it - reading it

read full comment
Image of Paul Binotto
Paul Binotto
on February 17, 2020 at 02:43:00 am

[…] so many ALJs work for agencies whose heads, like the SEC Commissioners in Free Enterprise Fund, are shielded from at will removal. Moreover, this term, the Court has agreed on yet another challenge to agency structure, one which […]

read full comment
Image of Role of Private Parties in Public Governance – NULR Of Note
Role of Private Parties in Public Governance – NULR Of Note

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.