If Established by Law, Then an Administrative Judge Is an Officer

• Publication year: 2018

If Established by Law, Then an Administrative Judge is an Officer

Jennifer L. Cotton
University of Georgia School of Law, jennifer.cotton@uga.edu

If Established by Law, Then an Administrative Judge is an Officer

Cover Page Footnote
J.D. Candidate, University of Georgia School of Law, 2019; B.A., New York University, 2016. I would like to thank Professor Kent Barnett and the Georgia Law Review Editorial Board for their help in developing and editing this Note.

IF ESTABLISHED BY LAW, THEN AN ADMINISTRATIVE JUDGE IS AN OFFICER

Jennifer L. Cotton^*

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Administrative Judges (AJs) are a large and often overlooked group of federal agency adjudicators. While courts have examined Article II Appointments Clause challenges to Administrative Law Judges (ALJs), courts have yet to encounter a legal challenge to the constitutionality of AJs' appointment procedures. The constitutionality of any federal government actor's appointment is dependent upon whether that actor is an "officer" or an "employee" under the Article II Appointments clause. It is apparent that the current "significant authority" test that the Supreme Court has espoused to distinguish between officers and employees is unworkable. This Note endeavors to set forth a bright-line test to distinguish between officers and employees that better serves the purposes of the Appointments Clause and is more easily applicable. The test is simple: if an AJ is "established by Law," then that AJ is an officer and must be appointed according to the Appointments Clause.

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Table of Contents

I. Introduction..........................................................................311

II. Appointments Clause Background...................................313

A. THE SUPREME COURT'S PRE-LUCIA APPOINTMENTS CLAUSE JURISPRUDENCE...........................................................314
B. LOWER COURTS' APPLICATION OF THE SUPREME COURT'S JURISPRUDENCE...........................................................319
C. LUCIA V. SEC................................................................... 322

III. Administrative Judges Background...............................323

III. Argument.............................................................................326

A. THE COURTS NEED A CLEARER RULE TO DISTINGUISH BETWEEN OFFICERS AND EMPLOYEES..........................326
B. THE SUPREME COURT'S JURISPRUDENCE IS LIKELY UNDERINCLUSIVE.........................................................328
C. THE TEST FOR WHETHER AN ADMINISTRATIVE JUDGE IS AN OFFICER SHOULD BE WHETHER HER POSITION IS "ESTABLISHED BY LAW"................................................330
D. EXAMPLES OF IMPLEMENTATION OF AN "ESTABLISHED BY LAW TEST" FOR ADMINISTRATIVE JUDGES.....................332

V. Conclusion............................................................................334

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I. Introduction

It is possible that thousands of federal agency adjudicators in the United States today have been unconstitutionally appointed. The constitutionality of their appointment depends upon whether they are officers or mere employees. While the Article II Appointments Clause of the United States Constitution sets forth black-letter requirements for the appointment of officers, it sets forth none for employees.¹ Despite its apparent importance, the distinction between officers and employees under the Article II Appointments Clause is murky. Several recent cases have concerned challenges to the appointment of the most visible group of agency adjudicators—Administrative Law Judges (ALJs).² This Note considers a much larger but often overlooked group, collectively referred to as non-ALJs or Administrative Judges (AJs). This Note will argue for a rule-based approach to determining whether AJs qualify as officers under the Appointments Clause, and will contend that courts should employ a bright-line rule to determine AJs' officer status: if their positions are "established by Law,"³ then they are officers.

The "hidden judiciary" of federal administrative adjudication is composed of ALJs and their "doppelgängers," AJs.⁴ When this Note uses the term "AJs," it refers to all federal administrative adjudicators who oversee evidentiary hearings, excluding ALJs. Non-ALJ adjudicators go by many titles, including Administrative Judges, Hearing Officers, and Immigration Judges,⁵ but for

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simplicity's sake, this Note will refer to all of these non-ALJ adjudicators as "AJs."

The Supreme Court recently resolved a circuit split regarding whether the Securities and Exchange Commission (SEC) ALJs are employees or officers, holding that the SEC ALJs are officers—not employees.⁶ When the SEC ALJ circuit split developed, some expressed concerns about the slippery slope that may result if all ALJs were deemed to be officers.⁷ Equally concerning is the prospect of finding that AJs are officers. While courts and scholars have devoted significant attention to ALJs, regarding both their appointment and independence, AJs have received relatively little attention.⁸ This disparity in attention is likely due to the fact that AJs are more amorphous than ALJs; data is not as readily available as to their numbers, titles, qualifications, and protections.⁹ The most recent study indicates that federal agencies employ at least 10,831 AJs in the United States today.¹⁰ This number towers above the number of reported federal ALJs: 1,931.¹¹ Some AJs might be appointed in conformity with the Appointments Clause's provisions, but if some AJs are officers—which this Note argues is the case—then likely thousands of AJs have been and are being appointed unconstitutionally.

First, this Note will examine the Appointments Clause, its history, and related jurisprudence that is relevant to the employee-officer distinction. After that, this Note will explain who AJs are, particularly in relation to ALJs. Finally, this Note will argue that a bright-line, "established by Law"¹² test is the best route for determining whether AJs are officers.

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II. Appointments Clause Background

The United States Constitution delineates the requirements for appointment of "Officers of the United States" in the Article II Appointments Clause:[The President] shall nominate, and by and with the Advice and consent of the senate, shall appoint . . . all . . . Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the president alone, in the courts of Law, or in the Heads of Departments.¹³

The Clause contains two mechanisms of appointment—a default mechanism for principal officers and an alternative mechanism for inferior officers. The clause makes clear that the president must appoint principal officers with the Senate's advice and consent;¹⁴ this is the default appointment mechanism. Alternatively, under what is often referred to as the Excepting clause,¹⁵ congress may vest the power to appoint inferior officers in the president, courts of law, or heads of departments.¹⁶

The Clause includes the term "inferior Officers,"¹⁷ but it does not explicitly name the officers who are not inferior. To distinguish between "Officers of the United States" and "inferior Officers," the supreme court has dubbed officers who are not inferior as "principal officers."¹⁸ The Clause also does not explicitly name the individuals who do not rise to officer status at all. Courts have dubbed these individuals who work for the federal government—but who are not "officers"—mere "employees."¹⁹

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The purposes of the Appointments Clause are manifold, largely stemming from grounds of checks and balances. The Supreme Court has said that the Clause generally protects against "the danger of one branch's aggrandizing its power at the expense of another branch."²⁰ This purpose reflects a system of checks and balances where neither Congress nor the President alone can create and fill an office.²¹ The Clause was also crafted to prevent the "'manipulation of official appointments,' . . . because 'the power of appointment to offices' was deemed 'the most insidious and powerful weapon of eighteenth century despotism.'"²² The English Crown had used "clever distribution of places and positions" to secure a "great Chain of political Self-Interest" where "[t]he weeds of tyranny flourished."²³ Seeking to evade this utilization of the appointment power as a weapon, the Framers limited it to "ensure that those who wielded it were accountable to political force and the will of the people," and thus divided the power to appoint between the Executive and Legislative Branches.²⁴

A. THE SUPREME COURT'S PRE-LUCIA APPOINTMENTS CLAUSE JURISPRUDENCE

The Supreme Court has struggled to draw a clear line to distinguish between principal and inferior officers, and between inferior officers and employees. This Note will not examine the hazy distinction between principal and inferior officers, as it is not relevant to the issue of whether AJs are officers or employees. For now, it will suffice to say that if AJs are officers, then they are almost certainly inferior officers who can be appointed by the alternative mechanism in the Appointments Clause.²⁵

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At the heart of this Note lies the distinction between officers and employees—in other words, the line that divides "Officers of the United States" who must be appointed in accordance with the Appointments Clause, and mere employees whose appointment is not governed by the Clause. To be clear, this Note will not ask how to apply the line as defined by the Court. Instead, this Note will argue what the line should be for AJs. Ultimately, this Note contends that the line between officers and employees needs more clarity, which is a goal that courts can reach by relying upon the "established by Law" provision of the Appointments Clause for AJs.

First, though, it is important...