Presidential Control of Adjudication Within the Executive Branch

Commentators long have debated the scope of the Chief Executive's role in overseeing, enforcing, and at times reshaping the many programs and policies enacted by Congress. The question of the President's authority over the adjudications that Congress has seen fit to entrust to agencies to resolve; but on the other, political control over adjudication seems anathema to rights of litigants asserting claims against the government itself. Congress, therefore, may seek to curtail the executive branch's control of the adjudicative process to provide greater rights for individuals and firms involved in adjudications within the executive branch.

Accordingly, this Article first examines the scope of the President's Article II authority to manage adjudications within the executive branch. The Article initially notes, as have others, that the Supreme Court has limited the President's removal and (to some extent) appointment authority over officials engaged in adjudication, as opposed to other functions within the executive branch. The Article then argues that Congress, accordingly, should also be able to delimit the President's general Article II managerial authority over adjudicative officials more than those exercising enforcement and regulatory functions. Finally, the Article considers congressional directives that curb executive management efforts, particularly the recent Veterans Access Act that altered the disciplinary appeal route for SES employees in the Veterans Administration and the congressional specification in the Administrative Procedure Act that Administrative Law Judges ("ALJs") enjoy decisional independence. The Article concludes that such congressional direction, if clear, should displace the executive interest, in the first example, of preserving the role of the Merit Systems Protection Board in overseeing all federal employee discipline cases and, in the second example, in removing from office ALJs whom the employing agency believes do not competently interpret the law, apply agency policy, or find facts.