This Article explains why the for-cause removal provisions for ALJs are unconstitutional and offers three potential solutions to remedy this problem. Part I provides background information, which explains that the APA was a compromise of competing interests. Some wanted ALJs to be completely in-dependent from their agencies to further unbiased decision-making and inde-pendence, and others feared agencies would lose control over setting policy, should ALJs have such an independent function.Ultimately, Congress com-promised by including provisions to make the ALJs more independent, while also ensuring that agencies retained complete control to set policy.
As part of the independence piece of the compromise, ALJs would henceforth be removable only for cause.Further, to remove an ALJ, an agency, whose members might also be removable only for cause, had to make its case during a formal hearing before a different ALJ, who was removable only for cause and worked for a separate agency, whose members were also only removable for cause.In short, the process Congress created involves multiple levels of for-cause protection.
Next, Part II of this Article points out that the Constitution does not expressly provide the President with removal power; however, such power has been located within Article II and separation of powers.Specifically, the Supreme Court early on presumed the President had removal power be-cause the framers of the Constitution did not explicitly take it away.Building on the understanding that the President’s removal power is implicit in the Constitution, Part III details the Supreme Court cases that have addressed removal. Unfortunately, as Part III suggests, the Court has not been consistent in this area, but then again, that is nothing new these days.
Though the Court’s decisions have been inconsistent, its precedents show a definite pattern. The Court began the discussion with an expansive view of the President’s removal power that Congress could not easily re-strict. Removal limitations would not be implied, and the Court made clear it would only tolerate limitations on appointing authorities other than the President. Then, coinciding with the arrival of the first independent agencies, the Court backtracked in a series of cases. First, the Court decided to allow Congress to restrict the President’s removal power regarding officers having quasi-judicial and quasi-legislative functions;45 however, this distinction was hard to maintain. Most agency officials have multiple powers. So, the Court decided to allow Congress to restrict the President’s power to re-move purely executive, inferior officers so long as the President’s ability to faithfully execute the laws remained unimpeded.46 With these cases, the Supreme Court’s test had morphed. The type of power was no longer relevant; rather, the President’s ability to control the officer became determinative. But even this new test was short-lived. Judicial hostility towards restrictions on presidential removal powers returned. While the Court has not yet re-turned to its earlier expansive view of the President’s removal power, Part III of this Article concludes by discussing the views of the two newest appointments to the Court, and predicts that the Court is certainly headed in that direction.
In Part IV, this Article explains why the multi-track removal provisions protecting ALJs are unconstitutional, even if their purpose is meritorious, and perhaps even necessary. Given that the Supreme Court has held that dual for-cause removal provisions are unconstitutional, it does not take a math major to conclude that more than dual for-cause removal provisions are also unconstitutional. Hence, the Court will likely hold 5 U.S.C. § 7521 unconstitutional, because the statutory scheme creates multiple dual for-cause removal protections.
Assuming this assumption is correct and the Supreme Court is likely to hold 5 U.S.C. § 7521 unconstitutional, and that protecting ALJ independence within constitutional constraints is a worthy endeavor, one might ask, how can the Court resolve this mess? Part IV of this Article considers three possible solutions, none of which is perfect. First, the removal protection that applies to all civil service employees could similarly protect ALJs. Second, the Court could narrow Humphrey’s Executor to hold that Congress can limit a President’s power to remove principal officers who exercise adjudicatory powers exclusively. Third, the Court could overrule Humphrey’s Executor entirely and hold that Congress cannot limit a President’s power to remove any principal officer. This Article explains the pluses and minuses of each. Finally this Article concludes by offering some thoughts about the impact this issue will have on those attempting to dismantle the administrative state.
Linda D. Jellum, You’re Fired! Why the ALJ Multi-Track Dual Removal Provisions Violate the Constitution & How to Fix Them, 26 Geo. Mason L. Rev. 705 (2019).