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September 05, 2023

ABA asks Supreme Court to uphold authority of Congress to limit removal of administrative law judges

CHICAGO, Sept. 5, 2023 — The American Bar Association filed an amicus brief today with the U.S. Supreme Court, urging the court to uphold for-cause removal protections granted by Congress to administrative law judges (ALJs) in agencies, such as the Securities and Exchange Commission, whose heads enjoy similar protection.

For its term, which begins Oct. 2, the Supreme Court has accepted an SEC-related case that raises three legal questions. The ABA amicus brief addresses only one of those questions: namely, whether Congress violated Article II of the U.S. Constitution by granting for-cause removal protection to certain ALJs.

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 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 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.”

“The provisions of the APA are intended to protect the decisional independence of ALJs by preventing discharge without good cause,” the ABA brief said. It added: “APA and agency removal restrictions give ALJs the decisional independence they need to maintain public confidence in their decisions.”

Their decision-making, the brief said of administrative law judges, should be “unaffected by personal interest or threats or pressure from any source.”

The ABA amicus brief in SEC v. Jarkesy is here. The pro bono brief was filed by Complex Appellate Litigation Group LLP and Alexander Dubose & Jefferson LLP on the ABA’s behalf.

The ABA is the largest voluntary association of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.