Supreme Court Brief Amicus Curiae of Administrative Law Scholars in Support of Neither Party

30 Pages Posted: 7 Mar 2018

See all articles by Robert L. Glicksman

Robert L. Glicksman

George Washington University - Law School

Emily Hammond

George Washington University - Law School

Alan B. Morrison

George Washington University - Law School

Richard J. Pierce

George Washington University Law School

Jonathan R. Siegel

George Washington University Law School

Date Written: 2018

Abstract

This brief on behalf of 29 administrative law scholars takes no position on whether Administrative Law Judges (ALJs) are employees or inferior officers. It urges the Court to issue an opinion that respects the decision that Congress made unanimously in 1946 to enact numerous statutory safeguards that assure that ALJs have decisional independence from the agencies where they work while assuring that agencies retain control over the policy content and legal basis for any decision made in an adjudication in which an ALJ presides.

The brief describes the fifteen years of study and deliberation that led to the unanimous decision of Congress to enact the Administrative Procedure Act (APA) in 1946. It describes the particular attention that Congress devoted to the critical task of providing ALJs with the combination of statutory safeguards that minimize the risk that they will favor the agencies for whom they adjudicate cases while assuring that the agencies retain control of the policy content of any decision made in such an adjudication. It then describes the series of opinions the Supreme Court issued during the 1950s in which the Justices unanimously praised the provisions of the APA that assure that ALJs conduct adjudicatory hearings in an unbiased manner, explained the importance of those statutory provisions in protecting the values reflected in the Due Process Clause, and urged Congress to make those safeguards applicable to all agency adjudications. It concludes by urging the Court to issue an opinion that respects the decision that Congress made in 1946 to insulate ALJs from potential sources of pro-agency bias by including in the APA a combination of provisions that confer decisional independence on ALJs.

Suggested Citation

Glicksman, Robert L. and Hammond, Emily and Morrison, Alan B. and Pierce, Richard J. and Siegel, Jonathan R., Supreme Court Brief Amicus Curiae of Administrative Law Scholars in Support of Neither Party (2018). GWU Law School Public Law Research Paper No. 2018-07, Available at SSRN: https://ssrn.com/abstract=3135528 or http://dx.doi.org/10.2139/ssrn.3135528

Robert L. Glicksman

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

Emily Hammond

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Alan B. Morrison

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Richard J. Pierce (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-1549 (Phone)
202-994-5157 (Fax)

Jonathan R. Siegel

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-7453 (Phone)
202-994-5614 (Fax)

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