*This is the first post in a symposium on the decisional independence of administrative adjudicators. For other posts in the series, click here.
A confluence of factors has brought increased attention to the structural aspects of administrative adjudication, as reflected in this blog symposium. The long-held assumption that agencies would usually conduct adjudications pursuant to the Administrative Procedure Act (APA) has all but disappeared. When the APA’s adjudication provisions apply, they contemplate a formal on the record evidentiary hearing before an independent Administrative Law Judge (ALJ) who is protected by statutory separation of functions requirements, good cause prerequisites for disciplinary action, salary determinations shielded from agency control, and competitive hiring processes. The vast majority of administrative adjudications, however, are now conducted outside of the APA through less formal procedures by administrative judges whose independence is not protected to the same degree through these mechanisms.
At the same time, the independence of ALJs who preside over APA adjudications is also under siege. Executive orders have exempted ALJs from civil service hiring requirements that are intended to prevent cronyism and patronage, while the Supreme Court’s presidential appointment and removal decisions (and executive interpretations of them) raise doubts about the constitutionality of good cause removal provisions intended to protect ALJ independence. These developments increase the risk that improper pressure from the White House or political appointees within agencies will affect the outcome of agency adjudications. It is small wonder that Richard Pierce has suggested that it is “time to hit the reset button” on administrative adjudication.
Much of our recent work has centered on these questions, particularly the intersection between administrative adjudication and the Supreme Court’s emerging separation of powers formalism, which threatens to increase the risk of troublesome concentrations of governmental power and to undermine the rule of law. In one recent article, we argued that a central panel model, like the one that is used in most states, would be the most effective way to shore up ALJ independence. Other potential solutions are problematic. Strengthening statutory good cause removal protections for agency adjudicators, for example, might bolster concerns that such protections improperly infringe on presidential prerogatives and would not eliminate the prospect of the Court deciding that double good cause removal protections for agency judges violate separation of powers.
More fundamentally, this approach would not solve the underlying problem that arises when nominally independent and impartial adjudicators are employed by the agencies whose cases they decide, including both the appearance of bias and improper efforts to exert political influence in individual cases. Transforming agency adjudicators to members of an Article I court probably lacks political viability and, in any event, raises separation of powers concerns of its own. The status and role of Article I courts is poorly understood and equally difficult to reconcile with separation of powers. That approach, moreover, would likely make it impossible for agencies to retain the final decisional authority in such matters, thus compromising the agencies’ legitimate policy authority.
We were somewhat surprised by the attention our article recommending the central panel approach received, especially among ALJs, many of whom contacted us to express appreciation for the article. One consistent theme running through these conversations was that behind-the-scenes pressure from the agency’s political leadership to decide cases in a given way was a very common experience among ALJs. Some ALJs enlisted our assistance in promoting an ABA resolution in support of creating a central panel model, which (not surprisingly) faced considerable pushback and was eventually withdrawn for further study. Ultimately, we remain convinced that the central panel model is a viable option that ought to be considered as part of the conversation surrounding the reform of administrative adjudication. Although our earlier article was focused on ALJs, we think that the same justifications would apply to other administrative judges as well.
A properly designed central panel can preserve the advantages of the APA’s approach to administrative adjudication, including agency control over policy and preservation of specialized adjudicatory expertise, while increasing protections for decisional impartiality and independence. As in most states, agencies would retain control over policy formulation through promulgation of binding legislative rules, precedential adjudications, and less formal (and therefore nonbinding) guidance documents. In addition, agencies would retain final decisional authority through de novo review of central panel decisions and the power to preside over a case as an original matter in lieu of referring it for resolution by the central panel. The concept of a central panel does not require that all of its judges would have the same status or decide all types of cases. Thus, the central panel can preserve specialized expertise through the creation of subject matter-specific divisions, such as a specialized division of Social Security judges. At the same time, and equally important, by removing administrative adjudicators from the direct oversight of the agency whose cases they adjudicate, the central panel model severs the direct lines of control that facilitate improper agency pressure, thereby promoting impartial adjudication.
Pursuit of the central panel model would require resolution of some important institutional design questions. One of those would be where to locate a central panel. The choices include locating the panel in the Department of Justice or the creation of a free-standing entity. We favor the latter option because of the increasing politicization of the Justice Department. Of course, the central panel would have to be designed to be consistent with the Supreme Court’s recent precedents concerning presidential appointment, oversight, and removal authority under Article II. Unless the Supreme Court recognizes an administrative judge exception to its holding in Free Enterprise Fund that two layers of good cause protections interfere with the President’s duty to take care that the laws are faithfully executed, either the head of the central panel or the judges would have to be removable at will.
We think that at-will removal for the head of the agency makes the most sense, especially given the uncertainty surrounding good cause removal protections for agency heads. The Court already declared good cause removal for single agency heads to be unconstitutional in Seila Law and Collins. In view of the language and reasoning of those decisions, a decision overruling Humphrey’s Executor and invalidating good cause removal protections for multimember boards and commissions may not be far behind. The language in the cases suggests that the Court is more willing to accept good cause removal protection for inferior officers who lack policymaking authority. Because the central panel judges’ decisions would be subject to de novo review by the agency, the judges should qualify as inferior officers under Arthrex, and so their appointment by the head of the central panel or by the courts of law would be consistent with the Appointments Clause.
It is probably impossible to completely eliminate the threat of political influence. In these hyper-partisan times, it is entirely plausible that Presidents will appoint political partisans to head a central panel. It might be more difficult, however, for the President to defend appointment of a highly partisan leader for an agency charged with conducting impartial administrative adjudications. Even if that proposition is naïve, we think the head of the central panel would have fewer incentives to pressure judges who decide cases for many different agencies than the political leaders of specialized agencies currently have to influence the judges who work for those agencies. Given the number of judges involved and the variety of agencies and types of cases they decide, it would also be more difficult to exert improper political influence in individual cases. We do not seek to resolve all of these design questions either here or in our earlier article. Instead, we posit that the central panel approach is worth serious consideration as a response to threats to agency adjudicatory decisional independence.
Although the central panel has been considered and rejected before, that rejection was premised on the assumption that the APA provided adequate protections to ensure impartial administrative adjudications. We think that assumption no longer holds true. Conversely, the success of the central panel model in the many states that use it confirms that the model is a workable one. Many objections to the recently proposed ABA resolution centered around the form of the resolution or the process for proposing it. These concerns relate to the internal procedures and politics of the ABA and not the merits of the central panel model itself. The principal objection on the merits concerned the costs and disruption that transitioning to the central panel model would involve. Although these concerns are real, we think they can be minimized by such steps as simply moving current judges from their agency homes to the central panel. It is also possible to implement this transition incrementally as many states have done. Ultimately, we believe that these one-time transition costs would be more than offset by the benefits of ensuring impartial adjudication and limiting improper political pressure.
Richard E. Levy is the J.B. Smith Distinguished Professor of Constitutional Law at Kansas University School of Law. Robert L. Glicksman is the J.B. and Maurice C. Shapiro Professor of Environmental Law at George Washington Law School.