Having already raised the issues with the effort to overrule Humphrey’s Executor, fundamentally shift the mechanisms of government such that the independent boards and agencies created by Congress and placed under the Executive Branch’s umbrella will no longer be independent but serve the whims of the president, the next shoe has fallen.
The Trump administration told Congress on Thursday that it believed President Trump had the constitutional power to summarily fire administrative law judges at will, despite a statute that protects such officials from being removed without a cause like misconduct.
The move was the latest step in the administration’s unfolding assault on the basic structure of the federal government and on Congress’ power to insulate various types of executive branch officials in sensitive positions from political interference from the White House. The Trump administration disclosed its approach in a letter from Sarah M. Harris, the acting solicitor general.
This should come as no surprise to anyone, given the administration’s position as to the members of independent agencies and boards, but even so, ALJs purpose is to be putatively impartial in hearing disputes raised under the laws establishing these agencies and boards. Conceptually, this never made a great deal of sense to me, as ALJs know who hires them, pays them, and retains them, and if they have a bad habit of making rulings contrary to the policies promoted by a board under any given administration, they are well aware that their positions can be placed in jeopardy. You dance with the one who brung ya.
Had Congress truly expected ALJs to function as impartial judges, it would have made far more sense to place them under the auspices of the Judicial Branch, much like the position of magistrate judge, which is under the auspices of Article III judges without being subject to congressional confirmation.
An additional wrinkle is that access to federal courts generally requires exhaustion of administrative remedies, meaning you have to take your case before an administrative law judge before you can bring suit in district court. This presumes that going before the ALJ serves some legitimate purpose and the litigant will be given due process before an impartial arbiter. If the ALJ is merely another hurdle to further an administration’s policies and offer no possibility of a fair and impartial hearing, why bother?
But what’s particularly curious is the take of Attorney General Pam Bondi to the administration’s new position.
In a statement, Chad Mizelle, the chief of staff to Attorney General Pam Bondi, hailed the administration’s move to challenge the statute insulating administrative law judges from political interference by the White House.
“Unelected and constitutionally unaccountable A.L.J.s have exercised immense power for far too long,” he said. “In accordance with Supreme Court precedent, the department is restoring constitutional accountability so that executive branch officials answer to the president and to the people.”
Unelected and constitutionally unaccountable ALJs? Does Bondi have no clue what ALJs do or why ALJs exist? Of course they’re unelected and constitutionally unaccountable. They perform the quasi-judicial function of providing a fair and impartial hearing, not presidential inquisitors.
If this holds, there is no purpose for ALJs to exist. Who needs to waste time and money going before a rubber stamp of the administration, where the outcome is pre-determined and you have no chance for a fair hearing or determination? But then, where do the aggrieved go to vindicate their rights when they believe that their rights under law have been violated? That, of course, is a rhetorical question, as it seems pretty clear where Bondi would tell them to go.
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I’m not going to pretend to be qualified to respond in legal terms but I want to say, admittedly extrapolating from my experience with SSA ALJs, that the idea of an ALJ is obnoxious and provocative.
SSA ALJs have the authority to proffer testimony from heavily biased and incompetent medical experts, can ignore or invert testimony and evidence, and their decisions are given a low degree of review by federal courts. I have the evidence, the experience, and the energy to maintain my opinion for days without food or sleep breaks.
If ALJs for Labor or Securities function like this, fire them all and send them to Siberia.
What you said: “there is no (useful) purpose for ALJs to exist.” (Yes, I know I’m twisting your statement. Sorry, but on this topic my outrage exceeds my interest in reason and my ability to exercise restraint.)
My familiarity with ALJs comes from defending SEC enforcement actions against my clients. We would all be better off if they were eliminated as adjudicators in government law enforcement actions. As you say, at the SEC, they almost uniformly rule for the SEC in enforcement actions, not only on the merits, but in pretrial proceedings like discovery disputes and pretrial evidentiary motions. The rules of evidence don’t apply in these actions, and the ALJs permit the use of incompetent evidence all the time. On top of that, the appellate court of first instance is the SEC itself, which is the same entity that originally approved that the action be filed against the accused on the basis of submissions by the enforcement division, with only a limited opportunity provided to the accused to argue the prosecution should be rejected, and without ever seeing the arguments made for its approval. And these are not trivial proceedings. They can involve demands for millions of dollars in penalties and so-called “disgorgement” of ill-gotten gains, the calculation of which is laughably favorable to the SEC prosecutors. They also often involve SEC demands that the defendants be banned from their jobs, and even be permanently barred from ever working for a public company. The notion of deciding such prosecutions without normal due process protections should be inconceivable, and the notion that they should be tried by employees of the prosecuting agency and ultimately ruled upon by that same agency is abominable.