Trump DOJ Claims Barriers to Removing Administrative Law Judges are Unconstitutional
The U.S. Department of Justice (DOJ) said Thursday that legal barriers making it harder for a president to remove administrative law judges are unconstitutional.
This follows a pattern from President Donald Trump’s administration of trying to remove executive branch officials who are supposed to be protected from partisan influence.
Administrative law judges are members of the executive branch who preside over hearings regarding administrative disputes between federal agencies and affected parties. They serve both the judge and jury in these proceedings — having the authority to conduct hearings, issue subpoenas, review findings and administer rulings.
The judges adjudicate issues in numerous federal agencies, like complaints of unfair labor practices filed with the National Labor Relations Board, violations of labor laws — like minimum wage requirements — brought to the Department of Labor and disputes over someone’s eligibility for retirement or disability benefits under the Social Security Administration.
Acting Solicitor General Sarah Harris, one of the top attorneys in the Justice Department, sent a letter to the Senate saying the DOJ “has concluded that the multiple layers of removal restrictions for administrative law judges…violate the U.S. Constitution” and “will no longer defend them in court.”
A federal law states these judges can be removed “only with good cause,” and that’s determined by the U.S. Merits Systems Protection Board (MSPB), which protects federal employees from unfair personnel practices.
MSPB members are appointed by a president and confirmed by the Senate to serve seven-year terms. A president can remove them but “only for inefficiency, neglect of duty, or malfeasance in office.”
The system for removing these judges has multiple layers of protection from the president because a president can’t directly remove them, and the MSPB members who are able to remove them can’t be fired by the president without cause.
Essentially, this makes it harder for the president to impact this process, which allows these judges to be independent and not be concerned with the whims of partisan politics when a new president enters office.
Harris said this violates the U.S. Constitution’s separation of powers principles.
She referenced a 2010 U.S. Supreme Court decision that stated “multilayer protection from removal” to executive officers violates Article II of the Constitution, which vests executive power in the president. That case involved the Public Company Oversight Board, which is under the supervision of the Securities and Exchanges Commission.
In a statement Thursday, DOJ Chief of Staff Chad Mizelle announced the Justice Department’s new stance on these protections, saying the “[u]nelected and constitutionally unaccountable [administrative law judges] have exercised immense power for far too long.”
Since the start of his second administration, Trump has repeatedly pushed the boundaries of presidential power, purporting to fire numerous executive officials without cause.
Earlier this month, Trump tried to remove MSPB chair Cathy Harris without providing a reason, so she filed a lawsuit and a court temporarily reinstated her while litigation continues. She would be one of the people who would determine whether Trump has cause to fire an administrative law judge.
Hampton Dellinger, the head of the Office of the Special Counsel, also sued the Trump administration for firing him without cause because like MSPB members, the Special Counsel can only be terminated “for inefficiency, neglect of duty, or malfeasance in office.” A federal district court blocked Trump’s actions, and his administration asked the U.S. Supreme Court to weigh in.
Legal scholars argue these actions are part of Trump’s embrace of the Unitary Executive Theory, which asserts that the president has unlimited power to control the actions of the millions of members of the executive branch, possessing the ability to remove and replace any federal employee and control decision-making in agencies.