Restoring ALJ Independence

71 Pages Posted: 15 Sep 2020 Last revised: 27 Nov 2020

See all articles by Robert L. Glicksman

Robert L. Glicksman

George Washington University - Law School

Richard E. Levy

University of Kansas - School of Law

Date Written: March 13, 2020

Abstract

Institutional structures that protect the impartiality of federal agency adjudicators and insulate them from undue political pressure are essential to the constitutional legitimacy of agency adjudication. Those structures are crumbling, leaving the administrative law judges (ALJs) who conduct formal adjudications for the federal government newly susceptible to political pressures from the executive branch that threaten the neutrality of ALJs and the fairness of the process by which they make their decisions. First, judicial decisions have drawn into question longstanding safeguards for ALJ impartiality, including merit-based appointment by nonpolitical officials and good-cause requirements for their removal. Second, executive branch actions, including exclusion of ALJs from the merit-based civil service appointment process and expansive construction of presidential authority to remove ALJs for good cause, have further eroded essential safeguards for ALJ independence.

This Article argues that these threats to ALJ independence demand a legislative response. It provides what we regard as the most comprehensive analysis to date of the myriad and inter-related ways in which ALJ independence is being threatened. It then considers several options for restoring the balance between ALJ independence and preserving the policymaking discretion which Congress has delegated to the administrative agencies for which ALJs adjudicate. We argue that the adoption of the central panel model that predominates in the states is the most promising reform mechanism. Under this approach, ALJs would no longer be officers of the agencies for which they conduct adjudications. A properly constructed central panel could avoid the constitutional issues presented by recent Supreme Court decisions such as Lucia v. SEC and Free Enterprise Fund v. Public Company Accounting Oversight Board and provide greater security for ALJ neutrality and independence. At the same time, ALJs could continue to specialize in cases for particular agencies and the agency itself would retain final decisional authority and the ability to make policy through legislative rules and precedential adjudications that bind independent ALJs.

Because the impartiality of government adjudicators is integral to the legitimacy of adjudicatory decsisionmaking, the time to restore ALJ independence is now. Adoption of the central panel model is a legally viable means of doing so that is capable for generating the bipartisan legislative support that is needed to break the legislative gridlock that has thwarted many other good governance initiatives.

Keywords: administrative law, administrative adjudication, administrative law judges, adjudicatory independence, due process, Appointments Clause, Presidential removal of officers of the United States, central panel appointment

Suggested Citation

Glicksman, Robert L. and Levy, Richard E., Restoring ALJ Independence (March 13, 2020). 105 Minnesota Law Review 39 (2020), GWU Legal Studies Research Paper No. 2020-63, Available at SSRN: https://ssrn.com/abstract=3554076

Robert L. Glicksman (Contact Author)

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

Richard E. Levy

University of Kansas - School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-9220 (Phone)
785-864-5054 (Fax)

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