*This is the introduction to a symposium on the decisional independence of administrative adjudicators. For other posts in the series, click here.
In the 75 years since Congress enacted the Administrative Procedure Act (APA), administrative adjudication has slid slowly but inexorably into crisis. Myriad forces have combined to undo the statute’s most crucial component: its regime to ensure the decisional independence of administrative adjudicators. Over the next few weeks, Notice and Comment will host a symposium to air diverse possibilities for much-needed reform. In this post, I’ll frame the discussion by explaining the APA’s framework and exploring how and why it has failed.
The APA’s Hearing Regime
Among the most important provisions of the APA are those designed to ensure that agency officials who preside in adjudicatory hearings—today called “Administrative Law Judges” (ALJ)—are highly competent and impartial. Section 556(b) of the APA establishes the default rule that “there shall preside at the taking of evidence . . . one or more administrative law judges appointed under section 3105.” Under Section 3105, “[e]ach agency shall appoint as many administrative law judges as are necessary” to conduct the agency’s formal hearings. In addition, while section 556 defines the ALJ’s hearing powers, section 557 contemplates that ALJs will issue initial decisions that may become final if not reviewed and reversed by the agency head. This approach ensures that ALJs retain responsibility for the conduct of hearings and for their decisions. It also affirms the principle of agency head control by providing that “[o]n appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule.”
To ensure decisional independence, many important aspects of the employment relationship between an agency and its ALJs are taken out of the employing agency’s hands. For decades, another agency—first the Civil Service Commission and later the Office of Personnel Management (OPM)—was responsible for determining ALJ qualifications, administering the ALJ exam, and maintaining a register of qualified candidates for ALJ appointments. When an agency needed to appoint an ALJ, OPM would offer the top three candidates on the register for the agency to choose among. OPM also determines ALJ salaries, which are set above the GS scale to attract and retain high-caliber candidates. Agencies are not permitted to pay ALJs bonuses or subject ALJs to performance evaluations (although courts have held that agencies can impose case processing quotas). Finally, an agency can remove, suspend, or demote an ALJ only for good cause, which is determined by the Merit Systems Protection Board (MSPB).
The APA’s regime also protects ALJ decisional independence and impartiality by requiring an intra-agency separation of functions and restricting ex parte communications. See 5 U.S.C. § 557(d). These protections are reinforced by section 3105’s admonitions that “[a]dministrative law judges shall be assigned to cases in rotation so far as practicable, and may not perform duties inconsistent with their duties and responsibilities as administrative law judges.”
The APA Regime’s Long Unravelling
The ink was still wet on the APA when its formal hearing provisions began to unravel. The Attorney General, fresh off advocating for the APA’s enactment, pressed the position in court that the statute’s hearing provisions did not apply to deportation hearings. The argument was based on section 554(a), which provides that the APA’s formal hearing provisions apply “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” Hearings in deportation were not required by statute—they were required by constitutional due process—and so the government argued that the APA’s hearing provisions did not apply.
In Wong Yang Sung v. McGrath, decided in 1950, the Supreme Court rejected the government’s argument. In his opinion for the Court, Justice Robert Jackson suggested that the APA’s hearing provisions reflected Congress’s judgment regarding the minimum requirements of due process in adjudicatory hearings. In this account, preserving adjudicator impartiality was of central importance:
When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality. A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, perhaps to life itself. It might be difficult to justify as measuring up to constitutional standards of impartiality a hearing tribunal for deportation proceedings the like of which has been condemned by Congress as unfair even where less vital matters of property rights are at stake.
The Attorney General responded to Wong Yang Sung by lobbying Congress—successfully—to override the Supreme Court by statute. Congress exempted deportation hearings from the APA’s hearing regime.
In the decades that followed, Congress, agencies, and the courts consistently have taken available opportunities to escape the APA’s hearing provisions. The consequence is that adjudication is ruled, paradoxically, by a norm of exceptionalism. Most adjudicatory hearings are conducted “outside the APA,” according to agency- or program-specific procedural rules. The presiding officers in these hearings include a seemingly infinite variety of non-ALJ adjudicators. These adjudicators lack the impartiality and independence protections afforded by the APA.
In 2018, President Trump issued an executive order that dealt a critical blow to the APA’s already-faltering regime. The order largely removed OPM from the ALJ hiring process, returning to employing agencies the primary responsibility for determining ALJ qualifications and for recruiting and selecting ALJs. This allows agencies to hire ALJs with specialized experience—a plus!—but it also eliminated the mechanisms that ensured ALJs have generalized trial experience and were not hired primarily on the basis of a pre-existing relationship with the appointing agency. Post-hire restrictions on ALJ supervision, salary, termination, and sanction remain in place. But eliminating OPM’s gatekeeping function increases the perception—and perhaps the reality—that ALJs may be selected precisely because they are partial to the agency’s priorities.
Finally, in 2020, the Social Security Administration (SSA)—by far the largest employer of ALJs—explained in a final rule that its statute doesn’t require it to conduct hearings under the APA. The agency’s interpretation is based on a widespread misunderstanding of the structure of adjudication under the APA. If SSA fully implemented it—and stopped using ALJs—there would be precious little left of the APA’s hearing regime.
The Need for Reform
All of this leads me to the conclusion that APA’s regime for ensuring the impartiality and decisional independence of agency adjudicators has failed. Most adjudicators today do not enjoy the APA’s protections. And what little remains of the APA’s regime seems to be disintegrating. My sense is that dissatisfaction with the costs and hassles of appointing ALJs has been a large driver of agency avoidance of the APA’s hearing procedures. There is also some evidence that the political will no longer supports the APA’s ALJ regime: President Biden has revoked many of President Trump’s executive orders, but he has left the 2018 ALJ order in place.
The federal government must have a reliable system to ensure that administrative adjudicators are highly competent, impartial, and able decide cases fairly and independently. It is time to acknowledge that the APA’s system has fallen apart. We must construct a new one.