Adjudicating Federal Power: Administrative Law Judges
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JACOB BROWN: On April 17th, 2020, Gerald Bryson was fired from his position at an Amazon fulfillment center in Staten Island, New York for “making vulgar and derogatory comments towards another employee.” The offending comments had happened during an argument with a fellow employee in the center’s parking lot while protesting what he viewed as insufficient measures to keep employees safe from COVID-19. Arguing that Amazon had fired him in retaliation for his protest of working conditions and not for the language he used, Bryson sued Amazon. However, he didn’t go to a federal or state court. Instead, Bryson sued Amazon before the National Labor Relations Board. There, his case was heard by an administrative law judge (ALJ), key players in the actions of the federal government and the execution of federal law.
ALJs are found all over the federal government, with almost 2,000 embedded in agencies ranging from the Department of Homeland Security to the Securities and Exchange Commission. Traditional federal judges (Article III judges) like those in federal district and appeals courts derive their authority to hear cases from Article III of the U.S. Constitution (this is why they are sometimes referred to as “Article III” judges). ALJs, by contrast, derive their authority from federal statutes such as the National Labor Relations Act. As a result, proceedings before them need not follow the federal rules of procedure that Article III judges must. They also do not feature juries. This allows much more streamlined processes, lowering costs for the parties involved, but it also means that some of the protections offered by the federal rules of procedure are not present. The assignment of ALJs to specific agencies also allows for more specialization of judges. An ALJ in the Social Security Administration gets very familiar with the law surrounding social security and does not need to keep up with labor law. Meanwhile, an Article III judge hears a wide variety of cases and thus inherently cannot develop the same sort of specialization and depth of knowledge (at least in theory).
Administrative Law Judges in their modern form in the United States date back to section 11 of the 1946 Administrative Procedure Act (APA). The large expansion of the federal bureaucracy from President Franklin D. Roosevelt’s New Deal had created significant concerns about a newly empowered federal bureaucracy operating in an opaque and unaccountable manner. The APA was meant to start to solve those problems by laying down a set of procedures and processes that federal agencies would be required to follow and empowering independent ALJs to oversee some of those processes and adjudicate their outcomes.
The debate around administrative law judges (so much as one exists) tends to roll them up in broader exaltations or critiques of the administrative state. Those on the left argue that they are crucial to the functioning of a government that works to protect worker’s rights, the environment and so forth. This is true to some extent, although in most cases it would at least be technically possible to resolve many of the disputes heard by ALJs through other means if Congress so chose. However, shifting the burden to Article III judges would likely require hiring many, many more of them as there are currently about twice as many ALJs as Article III judges. Even worse, the robust procedural rules of proceedings in Article III courts mean that it would likely take more Article III judges to get through the same number of cases that a certain amount of ALJs get through. Those on the right, meanwhile, often point to the increasing power and discretion of federal administrative agencies as a threat to the liberty of Americans. The implication of this position is that ALJs are at most ineffective checks on that power and at worst an embodiment of the lack of proper due process that characterizes the administrative state.
Notably, what both these sides fail to argue much about is the actual merit of ALJs themselves. Liberals tend to mostly presume they are good as they currently play a significant role in the administrative state, while conservatives tend to mostly presume they are bad as they currently play a significant role in the administrative state. The arguments are not actually that simple, there are some critiques of the way that ALJs themselves work. However, for the most part ALJs just enter the public discussion as symbols of the expansiveness of the administrative state rather than entities worth consideration on their own merits.
Potential ALJ Reforms
Despite this lack of meaningful debate, there is actually quite a consequential bill before the House right now. H.R. 4448 returns ALJs to the competitive service after President Trump’s Executive Order 13843 which exempted them from the competitive service. The competitive service is the designation for most federal employee positions which gives the positions an array of protections from politically-motivated interference in personnel decisions for them. The bill also lays out some minimum qualifications for ALJs such as that they have at least seven years of experience as a licensed and practicing attorney.
The second and almost as immediate sets of potential reforms that can be made to ALJs is insulating their procedures from the Jarkesy v. SEC ruling or ensuring that the concerns raised by the majority in Jarkesy’s are addressed across the various agencies ALJs operate in. In Jarkesy, the Fifth Circuit Court of Appeals ruled that the current use of ALJs by the Securities and Exchange Commission (SEC) is illegal for three reasons. The first reason is that Jarkesy was entitled to a jury trial and adjudication by an ALJ in the SEC does not involve a jury. (This does not apply to all ALJ proceedings, the reasoning is specific to what the SEC does). The second reason is that Congress did not give the SEC sufficient guidance in how it should operate. The third reason is that the ALJs of the SEC are too unaccountable to the President (this is also specific to the funding structure of the SEC). If we want ALJs to continue working in the SEC, and potentially in other areas of the federal government, addressing some of these issues is possible through congressional and executive action. It may also be worth using Jarkesy as an opportunity and reminder to address the controls on ALJs to limit their abilities to operate freely through doing things like creating jury-like elements in proceedings before them.
We could also think more about the difficulties of appearing before ALJs. Currently, if you want to challenge a denial of Social Security benefits, you can eventually end up before an ALJ. In fact, the Social Security Administration employs more than three-fourths of the ALJs in the federal government for this purpose. The Government Accountability Office has found that someone who had an attorney or non-attorney representative in front of an ALJ was 2.9 times more likely to win their case. While some of this is that attorneys are more likely to choose to represent cases they believe to be winnable, it may be worth thinking through if more steps should be taken to make it easier to prevail without representation given its costs.
One possibility is to do something like what happens in cases before ALJs of the National Labor Relations Board where, if the National Labor Relations Board thinks your case has merit, they will represent your interests. Alternatively, the Social Security Administration could switch from an adversarial to an investigatory adjudication process. Courts in the U.S. are adversarial institutions. Both sides make legal arguments attempting to convince a neutral third party their side is right with all arguments they can think of. However, courts can also use an inquisitorial system where the system is not built around two vehemently disagreeing parties and a neutral arbiter but rather a neutral arbiter empowered to demand information from all parties involved to aid their reaching a sound decision. Under such a model, an ALJ might make more affirmative action to ensure that someone challenging the agency’s action has the best chance at convincing the ALJ to find in their favor.
Another potential area of reform to ALJs is in the legal ramifications of their findings. In some cases an ALJ ruling is final (unless one challenges in federal court arguing that the statute in question was misapplied). However, in other cases, such as cases before the ALJs of the National Labor Relations Board, the findings of an ALJ are then brought before a federal court to rule on and then potentially issue sanctions. This second level of review adds a whole extra layer of procedure into the legal process, most likely costing parties money and delaying the final result of the process. However, it also serves to keep the federal government extra accountable. Finally, it may also help to ensure that there are sufficient ALJs to get through their caseload which is not always the case.
ALJs are not an inevitable or necessary part of the federal government. However, at this point they play a crucial role in holding the federal government accountable. How we decide who they are, what procedural rules proceedings before them follow, and what power they have to rectify decisions are all important in shaping what the federal government does and does not do.
Jacob Brown is a freshman studying Economics and Government. Jacob is from Redmond, Washington, and spends his free time figuring out how fast he can listen to podcasts. He is a member of Georgetown Effective Altruism, the Georgetown Bipartisan Coalition and the Georgetown Moot Court Team.