“Administrative Law Judges Are Unconstitutional”

Administrative law judges are executive-branch as distinct from judicial officers, yet the President has no power to remove them; at the Securities and Exchange Commission and many other federal agencies, they are themselves employed by the agency on whose enforcement cases they must render quasi-judicial rulings. In recent years federal judges have expressed unease about whether assigning ALJs this particular combination of adjudicatory powers and institutional affiliations is entirely consistent with the U.S. Constitution, and now a Cato Institute amicus brief, in the D.C. Circuit case of Timbervest LLC v. Securities and Exchange Commission, urges courts to take the next logical step and rule that it is not. [Ilya Shapiro and Thaya Brook Knight; earlier here, here, here here, etc.]


  • You can finds authority for the whole fourth branch of government (the Agencies), including the adjudicatory authority of ALJs in the “Penumbra and Emanations” clause of the Constitution.

    See Griswold v. Connecticut, 381 U.S. 479 (1965)

  • I remember when the NLRB went from “Trial Examiners” to ALJ’s. At first it was humorous to see the reaction among the existing panel, as at least one went so far with his new title as to sport a judicial robe and demand “All rise” when he entered and left the hearing room, but then it began to sink in, there was more more and authority being vested in these super bureaucrats. It is the natural tendency of any governmental position, to amass more and more power until someone stops them, but in the ALJ’s case the Board began to act as the Supreme Court, and only intervene when it saw fit, so some awful results were allowed to stand. The position should be relegated to that of a hearing officer in a Representation case, i.e., making a record upon which the presiding body must base its decision. There is no need for the ALJ to pontificate on his or her views of what the law should be, just get the facts right.

    • Kind of reminds me about the 80’s comedy “Night Court”. The ADA there had dreams of being a Judge. “I want to wear black satin and send people to jail!”.

  • We have a country of 350 million or so people. Sure, we have 50 states, but conservatives insist on national standards for things like interstate commerce. To facilitate that, we need a massive bureaucracy. I am sorry, you cannot have it both ways. If you want a smaller federal bureaucracy, give states more powers. I am sure that the powers that be would love for NY state to have more say over the financial industry than they already have. And the barriers that would rise would be formidable. Imagine each state requiring different licenses for trucks or having different standards for railroads.

    • Sure, we have 50 states, but conservatives insist on national standards for things like interstate commerce.

      National vs state has very little to do with this particular problem; states have their own bureaucracies. The tension here isn’t between state and federal, but rather between executive and judicial.

      We are supposed to have a right to a jury trial in this country. We certainly aren’t supposed to have cases decided by “judges” working for the very department that is doing the accusing.