The American Bar Association filed an amicus brief on Sept. 5 with the U.S. Supreme Court, urging the court to uphold congressional protections for removal without cause provided to certain administrative law judges (ALJs) in agencies such as the Securities and Exchange Commission.
The Supreme Court has accepted an SEC-related case for its term beginning Oct. 2 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 some administrative law judges protections against removal without cause.
Under the Administrative Procedure Act (APA), ALJs across federal agencies have been protected against removal without cause or good reasons, as established by the independent Merit Systems Protection Board. In May 2022, a divided three-judge panel of the U.S. Court of Appeals for the 5th Circuit held that those 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.”
The brief said the decisions of administrative law judges should be “unaffected by personal interest or threats or pressure from any source.”
The case could significantly shift how federal administrative law functions. The Congressional Research Service has said the 5th Circuit’s decision “calls ALJs’ statutory removal protection into question across the federal bureaucracy … (and) would appear to mark a major shift in administrative law.”
- ABA amicus brief in SEC v. Jarkesy
- ABA Standing Committee on Amicus Curiae Briefs and ABA amicus brief library
- Congressional Research Service: “Removal Protections for Administrative Adjudicators: Constitutional Scrutiny and Considerations for Congress”
- ABA Journal coverage of administrative law judges