Presidential Adjudication

57 Pages Posted: 18 Mar 2024

Date Written: February 14, 2024

Abstract

Over the last several decades, administrative law has recognized an expanding role for the President in controlling agency decisionmaking. Agency adjudication—and especially formal hearings conducted under the Administrative Procedure Act (APA)—have been viewed as properly insulated from this development. To protect due process, the APA established a regime for ensuring that competent, impartial Administrative Law Judges (ALJs) preside over formal hearings. The regime includes two apparent levels of for-cause removal protection for ALJs combined with robust agency head control over the policymaking aspects of formal adjudication. Today, the regime is in peril because it appears to be inconsistent with the Supreme Court’s unitary executive theory of administration.

This Article defends the constitutionality of the APA’s ALJ regime under the Supreme Court’s recent separation of powers cases. It argues that the APA’s robust preservation of agency head control satisfies Article II, while its for-cause protections for ALJs ensure due process and faithful execution of the law through adjudicatory hearings. The statute is, in short, well designed to ensure properly presidential adjudication.

The Article further argues, however, that there is a deeper conceptual challenge lurking here. The APA and the administrative state were founded upon a New Deal-era conception of administrative power as quasi-legislative and quasi-judicial and fundamentally not executive. Modern administrative law has rejected this conception, embracing instead the view that administrative power necessarily entails the exercise of executive power. The current threat to the APA offers an opportunity to improve upon this conception by recognizing that administration is about both discretion and duty. Political control has its place. But the President must also be able to rely on subordinate officers that Congress has equipped with the legal and institutional support necessary to fairly and faithfully execute the law.

Keywords: administrative law, Administrative Procedure Act, APA, adjudication, due process, impartiality, presidential administration, unitary executive theory, Jarkesy v. SEC, removal, appointments, inferior officers, Administrative Law Judges, ALJs, separation of powers, Article II

JEL Classification: K23

Suggested Citation

Bremer, Emily S., Presidential Adjudication (February 14, 2024). 110 Virginia Law Review ___ (forthcoming 2024), C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 24-04, Available at SSRN: https://ssrn.com/abstract=4726519

Emily S. Bremer (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
5746311511 (Phone)

HOME PAGE: http://https://law.nd.edu/directory/emily-bremer/

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