Limits on the Unitary Executive: The Special Case of the Adjudicative Function

Abstract

Recent Supreme Court cases embracing the unitary executive ideal have imperiled the independence of Administrative Law Judges (ALJs), who as “Officers of the United States” help resolve disputes between the federal government and private parties. Although ALJs long have been protected from “at will” removal under the Administrative Procedure Act, the Court in a number of decisions has stressed the importance of close presidential control over all “Officers of the United States.” Many have attacked the Supreme Court’s embrace of the unitary executive theory as ahistorical, misguided, or both. My argument instead is that the functional underpinnings of the unitary executive formulation under Article II, as well as Supreme Court precedent, readily can be reconciled with independent judging within the executive branch. The Court has stressed that the President must stand accountable in the public eye for the executive branch’s exercise of authority delegated from Congress, but not for all authority. Indeed, the executive branch itself repeatedly has drawn a line between the exercise of economic, social, and political policymaking that the President under Article II must manage and professional authority that no matter how important can be exercised by individuals, whether employees or “Officers,” shielded from the President’s plenary removal authority. I use the examples of the Federal Tort Claims Act and the Federal Service Labor-Management Relations Statute to illustrate that distinction and conclude that, under any rubric, ALJ factfinding sets no new economic or social policy, but rather reflects professional judgment in applying previously set policy to the facts at hand.

Keywords: unitary executive, ALJ, APA, presidential removal authority, law