Limits on the Unitary Executive: The Special Case of the Adjudicative Function

Federal agencies rely extensively on Administrative Law Judges (ALJs) for resolving disputes between regulated parties and themselves. As a group, ALJs dispose of five times as many cases as are filed in federal district court annually. Given the conflict of interest that hovers over any scheme of administrative adjudication, in which private parties are engaged in a dispute with the very agency that is adjudicating the dispute, confidence in the integrity of ALJ proceedings is critical. Although courts have rejected the plausible premise that the Due Process Clause itself guarantees ALJ independence, courts to date have upheld congressional efforts, most notably in the Administrative Procedure Act (APA), to insulate ALJs from improper agency influence.

That may be about to end. As others have noted, a combination of the Supreme Court’s decisions in Free Enterprise Fund v. Public Company Accounting Oversight Board,6 holding that inferior officers in independent agencies must be removable at will, and Lucia v. SEC, which held that ALJs are inferior officers, threatens the continued independence of ALJs. The logic of the two decisions strongly suggests that ALJs, at least in independent agencies, must be subject to at-will dismissal, despite the signal protections in the APA.