If ALJs are “Officers,” Who Should Appoint Them?

by Jennifer Mascott — Tuesday, June 27, 2017@jennmascott

As Aaron Nielson has reported on this blog, yesterday afternoon the D.C. Circuit issued a judgment in the SEC ALJ case. The judgment essentially reinstates the D.C. Circuit’s earlier panel decision finding that the ALJs are not Article II “officers” subject to the Constitution’s Appointments Clause requirements. The judgment thus also reinstates the D.C. Circuit’s split with the Tenth Circuit over the ALJs’ “officer” status, meaning this issue almost certainly will reach the Supreme Court.

If the Supreme Court takes up this case and rules that ALJs are subject to the Appointments Clause, this raises the question: who should appoint these agency adjudicators? (Currently the SEC has the statutory authority to appoint its ALJs, but the SEC has chosen instead to leave the appointments up to its Chief ALJ.)

If the SEC’s ALJs are “officers” at all, they almost certainly are inferior officers—not principal officers subject to the requirement of presidential appointment with Senate advice and consent. As inferior officers, the ALJs would be subject to the Article II provision permitting appointment by the President, a department head, or a court of law. But does the Constitution permit Congress to choose from any of these appointments options regardless of the kind of officer that is being appointed? Must the President or a department head appoint lower-level executive branch officers, as Professor Akhil Amar has contended? Or may Congress authorize a court of law to manage the interbranch appointment of an agency adjudicator?

In a widely cited article, Professor Kent Barnett has observed that under current Supreme Court doctrine, Congress may very well be able to assign courts of law to appoint agency adjudicators. Moreover, Professor Barnett suggests that constitutional considerations may require courts of law to appoint agency ALJs. In his view, executive branch appointment of agency adjudicators creates such a significant threat to ALJ impartiality that due process considerations may call for a court of law such as the D.C. Circuit—rather than the executive branch—to appoint ALJs.

Yesterday on SSRN I posted a draft essay titled “Constitutionally Conforming Agency Adjudication” that posits a different view. The essay suggests that Professor Barnett’s proposal, while very thoughtful and well-argued, in fact may create a constitutional problem rather than fix one.

Tying together legal scholarship on the Appointments Clause and the Fifth Amendment Due Process of Law Clause, my essay contends: The Article II clause that vests executive power in the President, as well as the text and drafting history of the Appointments Clause, together mandate that agency adjudicators must be appointed by executive branch actors—not by courts of law. As long as these adjudicators handle issues properly resolved through executive adjudication as a historical matter, there are no constitutional partiality concerns with the executive branch appointment—or even removal—of agency adjudicators. Rather, the transparency protections of the Appointments Clause provide the appropriate constitutional mechanism for accountability in executive adjudication.

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About Jennifer Mascott

Jennifer Mascott is an Assistant Professor of Law at George Mason's Antonin Scalia Law School where she teaches Administrative Law and serves as the Faculty Director of the Supreme Court and Administrative Law Clinics. She is a public member of the Administrative Conference of the United States. Previously she served as a law clerk to Justice Clarence Thomas and to D.C. Circuit Judge Brett Kavanaugh. Follow her on Twitter @jennmascott. Her scholarship is here: http://ssrn.com/author=2653151.

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