Are administrative law judges constitutional? [No. 86]
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Are administrative law judges constitutional? [No. 86]

October 13, 2019

From the very beginning, executive agencies
have engaged in what we call adjudication, if you just think of adjudication as being
applying the law to a set of facts. From the very beginning, um executive officials were
deciding whether individuals had um paid the right amount of taxes or given the revenue
that they owe to the government and so if we’re just talking about a simple executive
issue of applying the law to the facts, there certainly is a a grounding and a basis for
there to be some type of executive adjudication. The question comes in when an Administrative
Law Judge’s decision is strained beyond that area of just an executive matter of applying
appropriately the law to the facts and when an an ALJ has been empowered to take property
or liberty away from an individual and whether that determination instead should be made
within an Article Three court. Administrative Law Judges have not been selected
in compliance with how an Article Three judge would have to be selected. So for a federal
judge who’s who’s what we see as very impartial and independent, you know that individual
has been appointed by the President with the consent of the Senate, they have lifetime
tenure, and can only be fired through the mode of impeachment. And the reason that the
Constitution has those protections in place is to make sure that there are independent
decision makers who are in charge of reaching decisions that could result in the loss of
rights or property or liberty for the American public.
So some have questioned whether that that maybe means that ALJ shouldn’t always be reaching
decisions in every case that an Article Three court can reach a decision in because there
just are not the protections for individual right there.
At the same time, if you look historically, there certainly seems to be a role for administrative
and executive adjudication to do something. So this raises a lot of complicated questions
of constitutional law that that touch on not just where the accountability needs to be
within Article Two, within the Executive Branch but also how does the Executive Branch interact
with Article Three courts or federal trial courts.

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