Notice & Comment

How To Preserve Agency Adjudicator Decisional Independence

On Monday, I’ll be in Seattle to speak at the annual Federal Administrative Law Judges Conference. With the Supreme Court currently considering the constitutional future of agency adjudication in SEC v. Jarkesy, perhaps not surprisingly I’ll focus my remarks on the case and, in particular, on what the path forward could be if the Court holds that administrative law judges (ALJs) cannot be subject to two layers of removal protection from the president.

This issue has received extensive scholarly and policy attention in recent years. There have been a number of bold, sweeping reforms proposed by scholars and policy experts. When I chaired the ABA Administrative Law Section a few years back, we dealt with several of them, and I have been largely critical of the major reform proposals to date.

In a working paper entitled Saving Agency Adjudication, Aaron Nielson, Melissa Wasserman, and I explain our concerns with each proposal and then suggest a more modest path forward. Because I’ll be presenting the paper to ALJs on Monday, we’ve gone ahead and posted the current draft to SSRN here. Here’s the abstract:

When discussing the federal judiciary, commentators typically fixate on the 800 or so “Article III” judges who are nominated by the President, confirmed by the Senate, and enjoy life tenure and salary protection. Yet most federal adjudication does not take place in federal courthouses at all. Instead, it occurs in nondescript hearing rooms in administrative agencies—if not telephonically. Indeed, the more than 12,000 agency adjudicators scattered across the federal government collectively issue millions of decisions per year on subjects ranging from Social Security and veterans benefits to immigration and patent rights. In recent years, however, scholars and agency adjudicators have raised alarms that agency adjudication may be reaching a crisis point. Following the Supreme Court’s lead, federal courts have begun holding that how agency adjudicators are appointed and removed violates Article II of the Constitution because these agency officials are not sufficiently subject to the President’s control. Political control, however, threatens the perceived legitimacy of the adjudicatory process, and perhaps sometimes its actual legitimacy as well. The more entrenched the unitary executive theory becomes, reformers argue, the greater the risk that decisional independence will collapse. Reformers therefore have advanced sweeping proposals to save agency adjudication, including most prominently creating a new “central panel” agency to house agency adjudicators, expanding the Article I courts, or even moving agency adjudication into Article III courts.

This Article examines these proposals to save agency adjudication and explains why none of them will work, at least as a general matter. Each of these proposed solutions ultimately will not solve the problem and could have significant unintended consequences—some potentially catastrophic to the millions of individuals who participate in agency adjudication each year. One purpose of this Article therefore is to save agency adjudication from these well-intentioned but ultimately misguided reforms. But just because these proposals will do more harm than good does not mean that reformers are wrong to worry about the threat Article II poses to agency adjudication. Instead of fundamentally restructuring agency adjudication, however, we argue that Congress and federal agencies can more creatively use certain independence-enhancing tools that the Constitution itself provides, including prospectively raising the political costs of presidential interference in adjudicatory decisions and adopting self-imposed restrictions on agency-head appointment and removal. Unlike more sweeping and untested proposals, these longstanding tools do not raise constitutional concerns and will not cause systemic disruption. Yet they will safeguard decisional independence, thus saving agency adjudication from both Article II and imprudent reforms.

This is an early draft, so comments are particularly welcome.

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