Resolving ALJ Removal Protections Problem Following Lucia

Abstract

When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs need those layers of protection to ensure fair adjudicative hearings. Lucia now threatens ALJ protections. This Note argues that implementing a peremptory challenge system which would allow each party in an adjudicative hearing to remove the ALJ from hearing its case would create an avenue in which the Court could justify the removal issue. Such a proposal would fix executive oversight concerns about the President being unable to properly implement his policy. Additionally, peremptory challenges would allow litigants in front of an agency be able to remove ALJs they feel are predisposed to the agency. By addressing both constitutional issues, the Court may be more likely to find that the two layers of tenure protection in place are permissible for those in adjudicatory positions.