The Administrative Law Angle of the Calabresi-Hirji Proposed Judgeship Bill

by Chris Walker — Wednesday, Nov. 22, 2017@chris_j_walker

Steve Calabresi nearly broke the internet (see, e.g., herehere, and here) by proposing last week at the Federalist Society National Lawyers Convention that the Trump Administration should add more judges to the federal judiciary. His proposal, coauthored with Shams Hirji, is available on SSRN here. Here’s a summary of the proposal:

This paper argues that the lower federal courts are woefully understaffed and that this is leading to an effective denial of justice to litigants in federal court. The paper proposes that Congress immediately pass a judgeship bill funding new federal judgeships for the federal courts of appeals and the federal district courts. The paper also argues that funding be eliminated for the current administrative law judges in the regulatory agencies but that funding should be added to fund new Article III Administrative Law Judges in those agencies. The paper argues that such funding and defunding be made on the Reconciliation Bill presently before Congress because that Bill cannot be filibustered in the Senate.

The Calabresi-Hirji proposal recommends at least 61 new circuit judges and 200 new district court judges. It is this recommendation that has gotten the most publicity and outcry, and perhaps deservedly so.

But the second half of the proposal should be of even more intrigue to administrative law scholars and practitioners. Calabresi proposes to eliminate some current Article II administrative law judges (ALJs) and replace them with Article III federal administrative law judges. OPM reports that we have 1,931 total ALJs today, but the vast majority (1,655) adjudicate at the Social Security Administration. The Calabresi-Hiriji singles out 158 ALJs for elimination and nomination of Article III ALJs to replace them:

This paper is concerned with the ALJs residing in federal agencies wielding significant regulatory control over the country’s economy and who have the power to issue substantial civil monetary penalties against private individuals or entities. There are a total of 158 such ALJs spread throughout 20 different executive branch agencies in the administrative state (See Table H below). That is still a substantial number considering that there are only 673 Article III district court judgeships. Moreover, those ALJs occupy their posts in some of the most powerful agencies in the country, such as, the Department of Labor, Federal Energy Regulatory Commission, Environmental Protection Agency, and the Securities and Exchange Commission. In order to redress the serious separation of powers problems posed by ALJs, this paper recommends abolishing those ALJs and replacing them with Article III Administrative Law judges.

The proposal is a bit unclear at points. For instance, in some places it seems to suggest that Congress should create a new category of Article III judges — Article III ALJs — yet near the conclusion it suggests that these 158 positions should just be converted into federal district judges. The latter seems to make more sense, though I’d be curious to explore how the workload of those current ALJs compares with a typical district court judge.

The proposal raises a number of fascinating issues, including perhaps some new separation-of-powers concerns. To provide just one example, would the agency head (or independent agency commission) still have final decisionmaking authority with de novo review of the ALJ’s decision? The proposal doesn’t address that wrinkle. My guess is that Calabresi would reject such agency review. But if the agency retains final decisionmaking authority, an Article II agency would be able to invalidate an Article III adjudication. That would definitely be a whole new world of administrative law!

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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