Last month the Administrative Conference of the United States adopted an important recommendation regarding the role of Senate-confirmed officials in agency adjudication. The recommendation drew three separate statements from members of the Administrative Conference—including a concurring statement from me and Melissa Wasserman and two dissenting statements by Jennifer Dickey, John Duffy, Jenn Mascott, and Kate Todd. The recommendation and accompanying statements can be found here.

I’ve reproduced our separate statement below (hyperlinks added):

Separate Statement for Administrative Conference Recommendation 2024-3 by Senior Fellow Christopher J. Walker and Public Member Melissa F. Wasserman

Filed June 27, 2024

We are pleased to see the Administrative Conference adopt such an important and timely recommendation concerning best practices for agency-head review in administrative adjudication. We write separately to address that which the Administrative Conference prudentially chose not to: “whether Congress or agencies should, for constitutional or other reasons, provide for direct participation by [presidentially appointed, Senate-confirmed (PAS)] officials in the adjudication of individual cases under specific programs.” Our answer is yes.

Elsewhere, we have made the case for why the “standard model” for agency adjudication does and should include agency-head final decisionmaking authority. See Christopher J. Walker & Melissa F. Wasserman, The New World of Agency Adjudication, 107 Calif. L. Rev. 141 (2019). In our view, agency-head review is valuable because it assists the agency to make precedential policy, to increase consistency in adjudicative outcomes, to gain greater awareness of how a regulatory system is functioning, and to make the agency’s adjudicatory efforts more politically accountable.

Regardless of whether one is convinced by our normative arguments, agency-head review is likely now a constitutional requirement. If the Supreme Court did not so conclude in United States v. Arthrex, 594 U.S. 1 (2021), it came quite close. And the Court is bound to expressly embrace that constitutional rule in the near future. Accordingly, it would be wise for every agency—and Congress, where statutory fixes are required—to ensure some form of direct review by the agency head.

As agencies (and Congress) revisit adjudication systems in light of this constitutional requirement, two parts of the Recommendation are worth underscoring.

First, a constitutional requirement of agency-head final decisionmaking authority does not mean the agency head must review every decision in every case. Especially in higher-volume adjudication systems, agencies should design appellate systems to conduct such review, including the issuance of precedential decisions where appropriate. See generally Christopher J. Walker, Melissa Wasserman & Matthew Lee Wiener, Precedential Decision Making in Agency Adjudication (Dec. 6, 2022) (report to the Admin. Conf. of the U.S.); Christopher J. Walker & Matthew Lee Wiener, Agency Appellate Systems (Dec. 14, 2020) (report to the Admin. Conf. of the U.S.). In our view, such delegation of final decisionmaking authority would be constitutional under the Supreme Court’s evolving approach to separation of powers so long as the agency head preserves the authority to intervene and issue a final decision when necessary.

Second, it is critical, as the Recommendation advises, that “the agency ordinarily should delegate to one or more non-PAS adjudicators responsibility for conducting initial proceedings (i.e., receiving and evaluating evidence and arguments and issuing a decision).” Although the Administrative Procedure Act allows the agency head to preside over an evidentiary hearing, that is not—and should not be—the norm. The standard model for agency adjudication has two key structural features: the possibility of a final decision by a politically accountable agency head, as noted above, and an initial hearing and decision by a decisionally independent, tenure-protected agency adjudicator. See Aaron L. Nielson, Christopher J. Walker & Melissa F. Wasserman, Saving Agency Adjudication, 103 Tex. L. Rev. (forthcoming 2025).

This standard model enables a specific method for political control of agency adjudication, which is both transparent and circumscribed. Importantly, it ensures that an impartial agency adjudicator compiles the administrative record and makes the initial findings and decision. In a world where the Constitution requires political control of final agency adjudication decisions, it becomes all the more important that the hearing-level adjudicator bases the initial decision on the law and a matter’s individual facts—and not out of a fear of being fired or otherwise punished for not sharing the politics or policy preferences of the agency head.