Sharing administrative judges is prevalent, and it undermines the Constitution
There’s an entire quasi-judicial system of administrative law judges (ALJs) within the federal bureaucracy who hear cases brought by agencies against defendants. Often these judges are employees of the very agencies bringing the cases before them, but sometimes they’re on loan from other agencies. Very little is known about how this works or how prevalent it is.
Until now. Pacific Legal Foundation’s newest research report sheds some much-needed light on this system. Written by Stone Washington, research fellow at the Competitive Enterprise Institute, How Interagency Borrowing of Administrative Law Judges Circumvents the Rule of Law is first-of-its-kind research documenting the lending and borrowing of administrative law judges between agencies across the entire administrative state.
Washington sampled 960 ALJs across 421 federal agencies that together oversee more than 2,000 ALJs. His report finds that more than a quarter of these ALJs—267, or 28%—moved from agency to agency to adjudicate cases.
Unsurprisingly, the agencies with the most ALJs on staff tend to borrow and lend the most ALJs. The Social Security Administration, the Department of Health and Human Services, the Department of Labor, the National Labor Relations Board, and the Internal Revenue Service had the greatest number of transitory ALJs, the first four of which also had the largest number of ALJs employed. Of the 267 ALJs that adjudicated cases for multiple agencies, four out of five (213) worked for the Social Security Administration at some point.
PLF has long held that agencies prosecuting defendants within the confines of their own offices before judges who are employees of the same agency make a mockery of the Constitution’s separation of powers and due process guarantees. So, is it better—or more constitutional—if the administrative judges hearing and settling these in-house proceedings are borrowed from other agencies?
Simply put, no. Interagency borrowing of ALJs severs the accountability inherent in Article II.
According to the Supreme Court, ALJs are executive officers, so they must be within the proper chain of command: The president oversees the agency head who oversees the ALJ. When an ALJ is appointed by the head of an agency or department, who is himself appointed by the president, there is a direct line of accountability from the ALJ to the one member of the executive branch elected by the people, as long as the ALJ continues to work for that agency.
But if the ALJ is loaned to another agency, then he or she no longer serves under the appointing official at the original agency or department, and the chain of command is broken. This becomes a legal gray area. Who is the ALJ accountable to? Who can remove the borrowed ALJ from office? Does the ALJ serve at the pleasure of the borrowing agency’s head even though that official didn’t appoint the ALJ originally, or does the ALJ still serve at the pleasure of the appointing head at the original agency even though the ALJ is temporarily working elsewhere? It’s a bit of a constitutional rat’s nest.
Neither the president nor the appointing agency head, nor the borrowing agency head, can properly control an ALJ if the ALJ temporarily works for a borrowing agency. No matter how you slice it, this system of ALJs and agency tribunals dealing with matters of life, liberty, and property, regardless of where the ALJs work, runs afoul of the Constitution.
Constitutional arguments notwithstanding, those in favor of the larger system of agency adjudication cite bureaucratic expertise as a main argument for their support. Essentially, these regulatory, agency-specific disputes belong before a technocratic judge who understands the subject matter at issue. An Article III judge, with expertise in the law but not agency-specific regulatory policy, isn’t as equipped to pass judgment as an agency bureaucrat who over time has developed special expertise over the policy enforced by the agency.
The Constitution doesn’t contemplate a judge’s subject-matter “expertise” when it vests the judicial power in federal courts alone. But suppose expertise mattered—ALJ borrowing undermines that argument. When nearly three in ten ALJs move between agencies of a variety of fields, as opposed to working at one agency and concentrating on one area of regulatory law, then any argument based on expertise is a logical fallacy. Therefore, expertise can’t legitimately be an argument for keeping this system of administrative adjudication.
This novel research opens this system to further scrutiny. The executive branch’s cadre of administrative judges settling cases concerning life, liberty, and property, already an issue under the separation of powers, becomes even more problematic when those officials move across agencies to preside over disputes.
Read the full report here
