Trump administration attempts to bring political accountability to agency adjudication
The firing of federal workers has been a controversial topic since President Donald Trump began his second term in January. That controversy is warranted. The loss of a job is a difficult event for anyone who faces it. But there is a second reason these firings of government workers have caught everyone’s attention. Firing employees and officers of the Executive Branch is a critical tool of presidential control. It ensures that the Executive Branch and its officers and employees are democratically accountable.
Now, the Trump administration has furthered this democratic accountability by announcing that it will not defend in court the tenure protections for administrative law judges (ALJs) who preside over the federal government’s unaccountable administrative tribunals.
ALJs were created by Congress to serve as judges in Executive Branch adjudications. They are hired by federal agencies and often decide allegations of wrongdoing brought against everyday Americans by the same agency. These findings can result in the imposition of significant penalties without the involvement of a court. It is an unfair system in which the federal agencies, rather than a neutral judge or jury, decide the guilt of the individuals they are prosecuting. To give these ALJ proceedings a patina of independence, Congress limited the circumstances under which the president can fire ALJs.
Congress went to some trouble to make it difficult for the president to fire ALJs. First, an ALJ can be fired only for good cause. The president must have a substantial reason for terminating an ALJ, and simply disagreeing with an ALJ’s decisions is not sufficient. Second, whether or not the president actually has good cause is determined by the Merit Systems Protection Board (MSPB), which hears the appeals of federal employees regarding employment decisions. The MSPB’s members can be fired by the president only for “inefficiency, neglect of duty, or malfeasance in office.” So, the president is severely limited in his ability to fire ALJs. He can exert control over the process only when MSPB members behave so badly that they meet the high statutory standard for termination. This is surely the sort of job protection we would all love to have in the private sector.
These layered job protections are not how the Constitution was designed. Article II of the Constitution vests the executive power in the president alone. There is no constitutional provision that allows for independent agencies, special counsels, or neutral Executive Branch judges who are free from the political control of the president. A core mechanism through which the president exercises his executive power is by firing his subordinate officers and employees who do not follow his directions. Without this ability, someone other than the president is ultimately exercising executive power. That is unconstitutional. And it interferes with the democratic accountability of the Executive Branch. Voters might elect a president on promises to carry out certain policies, only to find these policies thwarted by entrenched bureaucrats that the elected president cannot dislodge.
A case study into the problem with removal protections is playing out right now with the U.S. Office of Special Counsel. The Special Counsel, currently Hampton Dellinger, is an investigator and prosecutor on behalf of the federal workers combating violations of federal personnel policy. Among other things, he brings cases on behalf of federal workers to the MSPB. Despite the Special Counsel carrying out this quintessentially executive function, Congress established a five-year term of office and prohibited his termination except for “inefficiency, neglect of duty, or malfeasance in office.”
Nevertheless, President Trump fired Mr. Dellinger, an appointee of former President Biden, without cause. Mr. Dellinger sued. A federal judge in the District of Columbia quickly restored Mr. Dellinger to his position temporarily while the case played out. Ordering this reinstatement alone is an act of judicial overreach. But it has resulted in real consequences for the Executive Branch as well. Mr. Dellinger took the case of six fired federal workers to the MSPB, which reinstated them. So, the president’s exercise of his arguably most important tool for executive control has now been thwarted multiple times over.
The Trump administration’s decision to no longer defend in litigation the removal protections of ALJs is an effort to avoid this eventuality in an administrative adjudication. There, the stakes are even higher. Take the situation of Joe Manis, who is currently, with PLF’s help, challenging the constitutionality of his U.S. Department of Agriculture adjudication of an alleged violation of the Horse Protection Act. This type of case should be brought before an Article III judge and tried to a jury. Instead, Mr. Manis was left at the mercy of the USDA’s own ALJs, who are well protected from accountability.
Political accountability from the president is not a substitute for an independent judge and a jury. But if Mr. Manis must defend himself within the USDA’s in-house tribunal, political accountability is the one check on the ALJ to which he is entitled.
The decision not to defend the constitutionality of ALJ removal protections is welcome news for Americans who are trapped in administrative tribunals presided over by these ALJs. It has a limited immediate impact. Other legal doctrines allow the government to argue that Mr. Manis’s case, and others, can continue despite the government’s concession that the ALJ was unconstitutionally protected from political accountability. But this announcement—along with the firing of Mr. Dellinger and other removal-protected officers—is an indication that the Trump administration is willing to hold ALJs politically accountable.
Now, Americans trapped in unconstitutional administrative adjudications will have a little more hope that an administrative agency cannot impose crippling penalties for alleged wrongdoing without any check on their power. And it is a step toward the restoration of the proper role of the president: to ensure that the laws are being faithfully executed by his subordinates.
