WASHINGTON – On Thursday, the U.S. Department of Justice’s (DOJ) Chief of Staff Chad Mizelle threatened the independence of administrative law judges (ALJs) to render decisions without fear of removal or retaliation. See DOJ news release. The Association of Administrative Law Judges (AALJ) representing nearly 1,000 federal administrative law judges says the DOJ’s position is an overreach and not supported by long-established precedent, statutes, or recent Supreme Court decisions designed to protect these judges from arbitrary removal.
“Administrative law judges carry out the law and should be free from political pressures,” said Judge Som Ramrup, who serves as the president of the AALJ. “They are not at-will employees. The DOJ can say that removal protections designed to shield ALJs are unconstitutional, but that is not supported by law.”
Founding father Alexander Hamilton understood the value of independent adjudication free from improper interference, as seen in the 79th essay of Hamilton’s Federalist Papers, published in 1788, Ramrup said.
“‘In the general course of human nature a power over a man’s subsistence amounts to a power over his will.’”
It appears that DOJ’s stance has been taken to unduly pressure ALJs who preside over enforcement and regulatory matters at agencies such as the National Labor Relations Board and the Securities and Exchange Commission.
However, most of the ALJs employed in the federal government hear cases related to Social Security, such as claims for disability and retirement benefits. More Americans will appear in a hearing room before a Social Security judge than in any other federal courtroom setting.
“Make no mistake, the AALJ will do everything legally possible to make sure that Social Security hearings remain fair and impartial, and that Americans receive the due process to which they are entitled,” Ramrup said.
The judges’ union has been meeting with its attorneys to discuss legal options.
The AALJ filed an amicus last year in SEC v. Jarkesy, 603 U.S. 109 (2024) that provides more background. Here is a brief outline:
By protecting hearing examiners from being “discharged at the whim or caprice of the agency or for political reasons,” Ramspeck v. Federal Trial Examiners Conf., 345 U.S. 128, 142 (1953), Congress sought to “guarantee the impartiality of the administrative process,” Wong Yang Sung v. McGrath, 339 U.S. 33, 52 (1950). MSPB review of good cause for removal is a critical mechanism for protecting ALJ impartiality. The agency decides to initiate a removal, 5 U.S.C. § 7521(a), but the MSPB ensures that the statutory good-cause requirement is fulfilled.
The good-cause standard itself provides sufficient supervisory authority in the adjudicative-official context:
(1) The agency has authority to completely replace each and every one of the ALJ’s decisions with which it disagrees. 5 U.S.C. § 557(b). This is because administrative law judges make no policy. Rather, administrative law judges hold hearings and apply the regulations created by agency policy makers to issue compliant decisions in conformity with law and regulatory policy.
(2) If the President wants to change the result of an administrative law judge’s decision, the solution is not to remove the administrative law judge. Rather, the President's solution is to remove the policymaker that creates the regulatory policy that the administrative law judge is bound to apply and install a policymaker that creates a policy that the President prefers. It is the removal of the policymaker – not the adjudicator – that ensures the President has the ability to take care that Congress’s laws are faithfully executed. And it is the President’s ability to remove the policymaker that ensures “the buck stops with the President.” Free Enterprise v. PCAOB, 561 U.S. 477, 493 (2010).
(3) The good cause standard has teeth and ALJs have been removed for a host of reasons. Good cause removal readily satisfies the Take Care clause while preserving judicial impartiality, remaining an important and powerful tool of executive accountability for adjudicative functions.
Jettisoning removal protections that preserve core criteria of neutrality and independence would not further the transparency and accountability aims of the Take Care clause but would impair ALJs’ basic duty and role in the Executive Branch: to “exercise[] . . . independent judgment on the evidence before [them], free from pressures by the parties or other officials within the agency.” Butz v. Economou, 438 U.S. 478, 513 (1978). Even the appearance of bias and unfairness undercuts this fundamental public trust, especially in the context of agency adjudication.
If tenure protections are unconstitutional for ALJs, the solution is not to eliminate ALJ tenure, but to eliminate the tenure protections for the agency head. See Seila Law v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020).
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The Association of Administrative Law Judges (AALJ) was founded as a professional association in 1971 to promote knowledge and collegiality among judges. Today the organization represents the approximately 1,000 judges who handle Social Security Disability and retirement claims. AALJ provides training and education programs for judges, serves as an advocate for judges and represents the issues of judges before Congress. A recognized federal employees union, AALJ bargains on behalf of its members with the Social Security Administration. AALJ is an affiliate of the International Federation of Professional and Technical Engineers and the AFL-CIO.