The appointment, removal, supervision and allocation of cases to Administrative Law Judges (ALJs) and other non-Article III adjudicators in the United States federal government continues to create vexing legal issues for courts and commentators. This article is an effort to address all of these issues together, to facilitate a holistic understanding of the place of non-Article III adjudicators in the federal government. The appointment question revolves around whether non-Article III adjudicators are Officers of the United States, which most are. There are two issues surrounding the removal of non-Article III adjudicators. First, for reasons sounding in due process concerns, adjudicators are usually granted a degree of independence manifested in protection from at-will removal, but it is unclear whether such insulation is actually constitutionally required. Second, the protection of adjudicators in independent agencies from at-will removal has come under scrutiny recently because the Supreme Court has determined that two levels of for-cause protection from discharge for other Officers of the United States unduly impedes the President from exercising the functions of the presidency. The issues surrounding the supervision of non-Article III adjudicators are similar to those concerning their removal, balancing the need to ensure due process against the need for centralized control of the execution of the law. The allocation of cases to non-Article III adjudicators raises concerns that grow out of Article III’s vesting of the judicial power in the federal courts. The traditional divide between public rights, freely assignable to non-Article III adjudicators, and private rights, reserved to the federal courts, has broken down. By sorting the cases more finely into distinct categories of public and private rights, this article aims to provide greater clarity concerning when assignment of cases to non-Article III adjudicators is constitutionally permissible.
Administrative Adjudication and Adjudicators,
Available at: https://scholarship.law.bu.edu/faculty_scholarship/398