Recently, there has been controversy in the federal circuit courts about the constitutionality of the current arrangements for administrative law judges (ALJs), and now the Supreme Court has accepted cert in the Lucia case which raises some of these issues. There are two main questions that these cases raise: whether the appointment of the ALJs conforms to the Appointments Clause and whether the removal restrictions on ALJs is consistent with the executive power being vested in the President.
There are two ways to look at this question. One way is to ask what the Constitution’s original meaning requires; the other is to ask what is likely to be the resolution under existing law.
Existing law has placed real, but limited restraints on government through the separation of powers. From the New Deal until 1976, the Supreme Court essentially stopped enforcing the separation of powers (especially against congressional laws). These Supreme Court actions allowed significant departures from the prior constitutional regime, including broad delegations of “quasi-legislative and quasi judicial authority” and restrictions on the President’s direction/removal authority.
Then in 1976, in Buckley v. Valeo, the Supreme Court once again started to enforce the separation of powers, holding that the Congress could not appoint officers of the United States. Since that time, the Supreme Court has occasionally struck down congressional laws and other actions on separation of powers grounds, but in the main these decisions have not significantly interfered with the administrative state. Probably the most important Supreme Court decision was INS v. Chadha, which held the legislative veto unconstitutional. But that decision has still allowed the administrative state to operate, and in some ways has enhanced the power of agencies.
One can imagine two alternatives to this post-Buckley approach of the current Supreme Court. One is the pre-Buckley approach of allowing everything. While that pre-Buckley approach would have allowed some things that the Supreme Court has struck down (such as Bowsher and Free Enterprise Fund), it is not clear how big a change that would have made (except for legislative vetoes). The real danger is that this hands off approach would have emboldened Congress to pass a slew of laws that would have departed even further from the traditional separation of powers regime.
The other alternative is to follow the Constitution’s original meaning. One problem with this alternative is that the original meaning in this area (at least for some issues) is not clear. That said, I believe the most likely possibilities would require a radical departure from the existing approach. In particular, agency adjudication in a wide variety of circumstances would be unconstitutional, requiring instead that adjudications be conducted by Article III courts. It is obvious to me that the current Supreme Court would not go near this approach, because it would involve such a departure from existing practices.
While this approach would change things significantly, I still think it would allow the administrative state to continue to function. In this article, I argue that administrative adjudication should be conducted before independent article III judges instead of before ALJs. Those article III judges would have expertise about matters and could often employ streamlined procedures.
In a future post, I will address some of the issues involving ALJs under existing law.