Independence in Administrative Adjudications: When and Why Agency Judges Are Subject to Deference and Influence

• Author: Daniel E. Chand,William Dean Schreckhise
• Published date: 01 February 2020
• Date: 01 February 2020
• DOI: 10.1177/0095399718760593
• Subject Matter: Articles

https://doi.org/10.1177/0095399718760593

Administration & Society

2020, Vol. 52(2) 171 –206

© The Author(s) 2018

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DOI: 10.1177/0095399718760593

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Article

Independence in

Administrative

Adjudications: When

and Why Agency Judges

Are Subject to Deference

and Influence

Daniel E. Chand1 and William Dean Schreckhise2

Abstract

Are administrative adjudicators subject to external influence and pressures?

We present the results from a nationwide survey of agency adjudicators,

focusing on immigration judges (IJs) and administrative law judges (ALJs) in

the Social Security Administration (SSA). ALJs follow decisional procedures

spelled out in the Administrative Procedure Act (APA) and are given

substantial legal protections from agency pressures. IJs do not follow APA

procedures, nor do they receive its protections. We find IJs give significantly

greater deference to the positions of the public, their agency, Congress, and

the president, and report more favorable attitudes toward interest groups

in adjudications.

Keywords

administrative adjudication, administrative judges, immigration, social

security disablity

1Kent State University, OH, USA

2University of Arkansas, Fayetteville, USA

Corresponding Author:

Daniel E. Chand, Kent State University, P.O. Box 5190, Kent, OH 44242, USA.

Email: dchand@kent.edu

760593AASXXX10.1177/0095399718760593Administration & SocietyChand and Schreckhise

research-article2018

172 Administration & Society 52(2)

Introduction

Do agency judges defer to others in the policy process such as their agency

leadership, members of Congress, the White House, interest groups, or the

general public? This subject is highly relevant because adjudicators make

decisions based on facts and law in a manner similar to “regular” judges

(called Article III judges) but do so as employees of their respective agencies

(Lubbers, 1996; Schreckhise, 1999). Thus, they exist in two simultaneous

states: as judicial actors and as bureaucrats. As judges, they render decisions

based on relevant law and recorded facts. As bureaucrats, they operate in a

broader institutional environment within an agency hierarchy that is itself

answerable to the elected branches of government and ultimately to the

people.

We explore this topic, specifically applying the strategic model (Epstein &

Knight, 1998) to an administrative adjudication context. We apply this theory

to two types of adjudicators: immigration judges (IJs) in the U.S. Department

of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) and

administrative law judges (ALJs) in Social Security Administration’s (SSA)

Office of Disability Adjudication and Review (ODAR). As administrative

adjudicators are simultaneously judges and bureaucrats, it is reasonable to

assume they would adopt a strategic approach. However, we find that IJs,

who lack statutory protections from agency evaluations that ALJs enjoy, are

more open to deference and influence.

Via a nationwide survey of 194 federal administrative judges, we examine

attitudes toward interest groups and how much adjudicators consider the posi-

tions of their agencies, political leaders, and the public. We examine the differ-

ences across four factors: (a) the level of legal protection from agency

interference afforded to the adjudicator, (b) how much the adjudicator values

knowledge of the law as a prerequisite for his or her position, (c) whether the

adjudicator has prior experience with the issue he or she adjudicates, and (d)

the adjudicator’s political party and ideology. We then explore the judges’ own

comments on the topic of independence and discretion in adjudications.

Examining the decisional independence of administrative adjudicators is a

topic worth addressing. As Rosenbloom (1983, pp. 284-285) pointed out,

administrators are tasked with responsibilities that reflect the different

responsibilities of government in general by not just executing law, but also

interpreting and even creating it. Administrative judges primarily interpret

and apply the law. They do so in a setting that is usually more legalistic and

formal than other administrators. It is this setting that allows us to examine

the interplay between their views of the rule of law and the regard they have

for other demands, such as their concerns for the parties in the hearing before

Chand and Schreckhise 173

them, their agency, and others in the administrative and political environment

in which they operate.

In the following sections, we examine different theoretical explanations

for the behavior of administrative adjudicators. We discuss what public

administration scholars have noted the rule of law ought to play. We then

illuminate why the strategic model of judicial decision making is appropriate

for exploring administrative adjudications, our measures of strategic defer-

ence and interest group attitudes, and, finally, why IJs and ALJs make ideal

comparison populations for testing differences in deference and influence.

Exploring these questions sheds light on the dynamics of how adjudicative

decisions are made in an environment where the rule of law is important, yet

one that contains a variety of other potential demands for the adjudicators’

attention. Doing so provides us with a better picture of the nature of demo-

cratic responsiveness and accountability in government agencies. We con-

clude that, although the rule of law is important, it is not the only influence

on the decisional orientations of administrative adjudicators and discuss the

implications of our findings.

Law and Public Administration

Over 30 years ago, David Rosenbloom (1983) noted that the field of public

administration has been directed by three competing values: (a) the manage-

rial approach, which emphasizes administrative efficiency and control; (b)

the political approach, which emphasizes bureaucratic representativeness,

responsiveness, and accountability; and (c) the legal approach, which recog-

nizes the importance of the legal authority of government agencies and the

protection of constitutional rights of those individuals affected by their work.

Each approach is embodied in each of the branches of government: execu-

tive, legislative, and judicial. In regard to the legal approach, Rosenbloom

(1983) notes,

To a considerable extent . . . this model is at odds with all the values embodied in

the other two (managerial and political) approaches: It militates against efficiency,

economy, managerial effectiveness, representativeness, responsiveness, and

political accountability. It is intended, rather, to afford maximum protection of

the rights of private parties against illegal, unconstitutional, or invidious

administrative action. (Rosenbloom, 1983, p. 224)

The first two approaches have occupied much of the field of public

administration’s attention for the last century, while largely neglecting the

third. In fact, Lawrence Lynn (2009) noted the field has provided an