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September 27, 2023

ABA Supports Administrative Law Judge Independence

Amicus Brief Filed in Case Involving ALJs

The ABA filed an amicus brief with the U.S. Supreme Court, urging the court to uphold for-cause removal protections granted by Congress.

The ABA filed an amicus brief with the U.S. Supreme Court, urging the court to uphold for-cause removal protections granted by Congress.

The American Bar Association has been advocating for increased independence for administrative law judges (ALJs) in the United States for many years. On September 5, the ABA continued that effort when it filed an amicus brief urging the U.S. Supreme Court to uphold for-cause removal protections granted by Congress to ALJs in agencies, such as the Securities and Exchange Commission (SEC), whose heads enjoy similar protection.

Under the Administrative Procedure Act (APA), ALJs across federal agencies have enjoyed statutory removal protection. In May 2022, a divided three-judge panel of the U.S. Court of Appeals for the 5th Circuit held that those removal protections violated U.S. Constitution’s Article II’s requirement that the president be able to ensure that the laws be faithfully executed. The Supreme Court granted the SEC’s petition for review of the 5th Circuit’s decision. The ABA’s amicus brief, in support of the SEC on that question, notes that the association has a “long history of supporting decisional independence for judges, including all administrative adjudicators.” 

Administrative adjudicators are federal agency ALJs who conduct due process proceedings in accordance with the APA, while administrative judges (AJs), who are not ALJs, largely conduct proceedings pursuant to federal statutes outside the APA. AJs are not covered by APA protections. However, both types of adjudicators are hired and employed by the agencies for which they decide cases.

During the Annual meeting in 2022, the ABA’s House of Delegates adopted policy calling for legislation requiring that the procedures used by federal agencies to appoint ALJs and AJs be designed to hire judges who will be committed to carrying out their adjudicatory duties and responsibilities in a fair, impartial, and independent manner. As such, merit-based hiring principles must be re-established, and federal agencies must be required to advertise open positions to reach a wide pool of applicants, publish minimum qualifications and selection criteria, and develop procedures for screening and interviewing qualified applicants.

The ABA also supports legislation establishing an ethics code for administrative adjudicators. Several years ago, DC Delegate Eleanor Holmes Norton crafted legislation that would establish an ethics code for ALJs. The ABA supported this legislation and recently held discussions with Delegate Norton’s staff to resurrect it. Unfortunately, there is strong opposition to such legislation, and it is unlikely to pass this Congress.

For now, the ABA looks to the Supreme Court to uphold for-cause removal protections for ALJs and preserve their judicial independence and adjudicative function by protecting them from being fired for not deciding cases as their agency head wishes, but instead deciding cases based on the evidence presented during the proceedings.

Follow us on social media platforms @ABAGrassroots to learn more about the ABA’s advocacy in support of judicial independence.

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