Regulating Impartiality in Agency Adjudication

Abstract

Which should prevail—the Take Care Clause of Article II or the Due Process Clause? To Justice Breyer’s chagrin, the majorities in Lucia v. SEC, 138 S. Ct. 2044 (2018), and Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially agency adjudicators, from at-will removal.

This article argues that the executive branch itself can and should moot or mitigate this constitutional clash. Nothing in Article II prevents the president from issuing executive orders and agencies from promulgating regulations—collectively, what I refer to as “impartiality regulations”—that require good cause for discipline or removal of an agency adjudicator, as well as other means of protecting adjudicator impartiality. Indeed, the executive branch has a longstanding, yet overlooked, practice of using executive orders and regulations for similar purposes. Impartiality regulations are but one form of the executive branch’s internal separation of powers. Self-imposed separation provides not only a strong practical solution for the agency-adjudication dilemma but—as scholars have come to develop in the past decade or so—a strong theoretical ground, too.

Keywords: adjudication, agency adjudication, ALJ, administrative law judge, administrative judge, hearing officer, Take Care Clause, due process, Article II, impartiality, civil service