Agencies at every level play an outsized role in everyday life. The FDA imposes nutritional guidelines; the FCC controls what viewers can see on TV. Many other alphabet-soup agencies regulate in many other areas of life. Thus, while many Americans think that it’s Congress that is regulating through legislation, it is usually the agency promulgating rules under broad grants of power from Congress. The legislature, for example, might pass a law that “furthers the public interest.” But the agency will be the one dictating what that vague term means.
What happens when one disagrees that an agency’s action actually furthers the public interest? You might think that she can call on the courts for help. Yet many of the judges who resolve the dispute between the individual and the agency work for the agency. In one instance, the head of a federal consumer protection bureau went after a mortgage lender for allegedly violating a vague real estate law. An administrative law judge imposed a fine of six million dollars. The Bureau Chief didn’t care much for that decision. He overruled the judge and imposed a fine of 109 million dollars instead! Instances in which an agency head overrules a judge offends the separation-of-powers and threatens individual liberty.
Unfortunately, agency heads have plenty of control over administrative law judges at the state level too. In Klein v. Oregon Bureau of Labor and Industries, cake decorators have asked the Supreme Court to review their case. Although much ink has been spilled about whether cake artistry is speech, PLF’s brief advances a unique argument. It focuses on the threat that agency power poses to the First Amendment. That power threatens First Amendment rights not only when cake artistry is at issue, but in any instance in which an Oregon agency seeks to enforce a broad law. When that happens, it will be up to an Oregon administrative law judge (ALJ) to vindicate an individual’s constitutional rights. These judges are not federal judges. The Constitution ensures that federal judges are independent by vesting them with life tenure and preventing the government from diminishing their salary. By contrast, Oregon ALJs are beholden to their agency head, and rely on that person for performance reviews, salary decisions and so on. Hardly a system that safeguards judicial independence.
This case will spark much debate over whether cake decorating is speech. Regardless of one’s views on that question, we should all hope that these complex issues will be decided by judges who are independent and neutral.