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Full-Text Articles in Law
Against Administrative Judges, Kent H. Barnett
Against Administrative Judges, Kent H. Barnett
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The single largest cadre of federal adjudicators goes largely ignored by scholars, policymakers, courts, and even litigating parties. These Administrative Judges or “AJs,” often confused with well-known federal Administrative Law Judges or “ALJs,” operate by the thousands in numerous federal agencies. Yet unlike ALJs, the significantly more numerous AJs preside over less formal hearings and have no significant statutory protections to preserve their impartiality. The national press has recently called attention to the alleged unfairness of certain ALJ proceedings, and regulated parties have successfully enjoined agencies’ use of ALJs. While fixes are necessary for ALJ adjudication, any solution that ignores …
Resolving The Alj Quandary, Kent H. Barnett
Resolving The Alj Quandary, Kent H. Barnett
Scholarly Works
Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …
Avoiding Independent Agency Armageddon, Kent H. Barnett
Avoiding Independent Agency Armageddon, Kent H. Barnett
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In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …
The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett
The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett
Scholarly Works
This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …