Constraint through Independence

By Listwa, Daniel B.; Fuller, Lydia K. | The Yale Law Journal, November 2019 | Go to article overview

Constraint through Independence


Listwa, Daniel B., Fuller, Lydia K., The Yale Law Journal


NOTE CONTENTS

INTRODUCTION                                                     550
I. LOOKING AT THE BIGGER PICTURE                                 554
    A. The "Anti-Administrativists" and the Call for Constraint  554
    B. Judge Winter and the System-Level View                    561
II. A CASE STUDY IN THE MODERN ADMINISTRATIVE STATE: THE NLRB    568
    A. Review of Conclusions of Law                              569
       1. Supreme Court Practice Since Allentown Mack            570
       2. Questions of Law in the Appellate Courts               572
    B. Review of Findings of Fact                                576
       1. Circuit Courts' Articulation of "Substantial
          Evidence" Review                                       576
       2. Circuit Courts' Application of "Substantial            580
          Evidence" Review
          a. Tactical Grounds for Upholding Findings of Fact     581
          b. Tactical Grounds for Reversing Findings of Fact     582
          c. Role of the Administrative Law Judge's Findings     584
       3. Empirical Evidence of Courts'                          588
          Deference Toward NLRB Fact-Finding
          and ALJs' Role in Facilitating Judicial
          Review
          a. Methodology                                         588
          b. Raw Data Results                                    590
          c. Chi-Squared Test for Statistical Significance       593
III. IMPLICATIONS                                                596
    A. The Continued Relevance of
       Judge Winter's Warning                                    596
    B. New Strategies for Administrative
       Constraint: Bolstering the Role of
       Independent Administrative Law Judges                     599
CONCLUSION                                                       609

INTRODUCTION

Barely even thirteen pages long, the Supreme Court's opinion in Lucia v. SEC seemed to render overblown the great anticipation leading up to the case. (1) Several commentators predicted that the Court's opinion would fundamentally change the authority and independence of administrative law judges (ALJs), non-Article III adjudicators who are mainstays of the modern federal bureaucracy. Instead, Justice Kagan, writing for the majority, relied on a fact-specific comparison to a past precedent to explain that the Securities and Exchange Commission (SEC) had appointed its ALJs in an unconstitutional manner--going forward, the Commissioners themselves, and not their staff, had to sign off on new hires. (2) Because the decision ostensibly made no new law, some have said that "Lucia went out with a whimper." (3) But while such a conclusion is understandable given the narrowness of the Court's reasoning, Justice Breyer's separate opinion suggests more far-reaching consequences. By embracing a constitutional, as opposed to statutory, ground for ruling against the SEC, Justice Breyer warned, the Court opened the door to finding unconstitutional the removal protections applied to ALJs throughout the administrative state. (4) Such a holding, he noted, would undermine a "central part" of the Administrative Procedure Act's (APA's) "overall scheme" by eroding the independence these adjudicative officers have from their respective agencies. (5)

Justice Breyer's prognostications were no mere musings. Under the current statutory regime, an agency can only remove its ALJs for "good cause" and only with the consent of an independent federal agency, the Merit System Protection Board (MSPB). (6) This requirement insulates ALJs, at least to some extent, from the influences of their respective agencies' political appointees. Seeking to unravel ALJ independence, the government declined to defend the SEC and instead pressed the Court to go beyond the appointments question and address removal. (7) The government's position is best understood in light of the Trump Administration's stated objective to reduce and reshape the power of the administrative state. …

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