How Interagency Borrowing of Administrative Law Judges Circumvents the Rule of Law
Abstract
More than 40 federal agencies enforce regulations via in-house tribunals, a practice called agency adjudication. Administrative law judges preside over these tribunals, adjudicating in a range of public policy subject areas and ultimately guiding the regulation of individuals and organizations. Although Americans may expect agencies to recruit administrative law judges transparently, in accordance with the Administrative Procedure Act, many agencies borrow and lend administrative law judges from one another, creating a secret system of personnel exchanges. This system obscures the identity of the agencies doing the borrowing and lending, as well as the sources of funding for administrative law judge compensation. This research report provides the first systematic analysis of interagency exchanges of administrative law judges and identifies points of possible incongruence with the Administrative Procedure Act. It also discusses potential conflicts between the president’s power over inferior officers and Congress’s power of the purse.