Resolving the ALJ Quandary
Barnett, Kent, Vanderbilt Law Review
"I [was] . . . the equal of the gods, save only [t]hat I must die."
Federal administrative law judges ("ALJs") understand Euripides's irony all too well.2 They, along with Article I judges, are the demigods of federal adjudication. As both courts and ALJs have noted, the function of ALJs closely parallels that of Article III judges.3 ALJs hear evidence, decide factual issues, and apply legal principles in all formal administrative adjudications under the Administrative Procedure Act ("APA").4 Indeed, they outnumber Article III judges5 and decide more than two hundred and fifty thousand cases each year.6 But they lack the defining characteristics of Article III deities. Article III judges are installed under the Appointments Clause,7 enjoy tenure and salary protection during times of "good Behavior,"8 and are not generally subject to reversal by the executive branch.9 In contrast, ALJs are hired as mere employees by executive officials, receive more limited salary protection than Article III judges, and are subject to removal within the executive branch.10 Moreover, the agencies for which ALJs work-often themselves parties to the proceedings-can reverse ALJs' decisions in toto.11 In Euripidean parlance, ALJs are equal to Article III judges, except for the Article III part.
The Structural Quandary
These differences between ALJs and Article III judges do more than chisel a chip on ALJs' shoulders. They reveal material practical and constitutional tensions, if not constitutional violations, that the U.S. Supreme Court has recently revitalized. These tensions concern ALJs' appointments, the President's supervisory powers over ALJs, and ALJs' independence and impartiality. These three concerns are in tension, rendering their resolution difficult.
First. If, as five current Supreme Court Justices have now suggested,12 ALJs are "inferior Officers" (not mere employees), the manner in which some are currently selected is likely unconstitutional.13 The Appointments Clause in Article II of the U.S. Constitution requires that such officers be appointed in one of four ways: by (1) the President with the Senate's consent, (2) the President alone, (3) the courts of law, or (4) heads of departments.14 ALJs, however, are selected by heads of agencies, only some of whom qualify as heads of departments.
Second. ALJs' job (or tenure) protections may improperly limit the President's implied power to remove and supervise executive-branch officers under Article II of the U.S. Constitution.15 The agencies that select ALJs can remove them only for "good cause" and only with the consent of an independent federal agency, the Merit Systems Protection Board ("MSPB"), whose members the President can remove only for enumerated reasons. A recent U.S. Supreme Court decision, Free Enterprise Fund v. PCAOB, invalidated the use of "tiered" tenure protection (i.e., two layers of tenure protection between the President and the officer at issue) for inferior officers.16 The four dissenting Justices in that decision noted that ALJs' two tiers of tenure protection (one for ALJs and one for the MSPB) would also appear to limit the President's supervisory power improperly.17 In short, the Court's most recent foray into this area suggests that the removal regime for ALJs clashes with the President's executive authority.18
Third. At the same time, increasing presidential control over ALJs would create impartiality concerns under the Due Process Clause. Agencies are parties to proceedings before the same ALJs that they appoint and that they may remove for good cause (albeit subject to the MSPB's consent).19 If ALJs lose one of their two tiers of tenure protection, either (1) agencies will be able to remove ALJs at will (and thus render the MSPB's extant tenure protection and role meaningless) or (2) agencies will be able to remove ALJs for cause with the consent of the MSPB, whose members the President can remove at will. …