Presidential control of adjudication within the executive branch.

• Author: Krent, Harold J.
• Position: Symposium: Executive Discretion and the Administrative State

ABSTRACT

Commentators long have debated the scope of the Chief Executive's role in overseeing, enforcing, and at times reshaping the many programs and policies enacted by Congress. The question of the President's authority over adjudications that Congress has entrusted to administrative agencies has been examined less frequently. The tension is clear: on the one hand, the President should have inherent authority to manage the adjudications that Congress has seen fit to entrust to agencies to resolve; but on the other, political control over adjudication seems anathema to rights of litigants asserting claims against the government itself. Congress, therefore, may seek to curtail the executive branch's control of the adjudicative process to provide greater rights for individuals and firms involved in adjudications within the executive branch.

Accordingly, this Article first examines the scope of the President's Article II authority to manage adjudications within the executive branch. The Article initially notes, as have others, that the Supreme Court has limited the President's removal and (to some extent) appointment authority over officials engaged in adjudication, as opposed to other functions within the executive branch. The Article then argues that Congress, accordingly, should also be able to delimit the President's general Article II managerial authority over adjudicative officials more than those exercising enforcement and regulatory functions. Finally, the Article considers congressional directives that curb executive management efforts, particularly the recent Veterans Access Act that altered the disciplinary appeal route for SES employees in the Veterans Administration and the congressional specification in the Administrative Procedure Act that Administrative Law Judges ("ALJs") enjoy decisional independence. The Article concludes that such congressional direction, if clear, should displace the executive interest, in the first example, of preserving the role of the Merit Systems Protection Board in overseeing all federal employee discipline cases and, in the second example, in removing from office ALJs whom the employing agency believes do not competently interpret the law, apply agency policy, or find facts.

CONTENTS INTRODUCTION I. THE NATURE OF ADJUDICATION WITHIN THE EXECUTIVE BRANCH II. A BRIEF HISTORY OF ADJUDICATION WITHIN THE EXECUTIVE BRANCH III. PRESIDENTIAL CONTROL THROUGH THE APPOINTMENT AND REMOVAL AUTHORITIES A. The Appointment Power B. The Removal Authority IV. MANAGERIAL AUTHORITY OVER ADJUDICATIVE OFFICIALS IN THE EXECUTIVE BRANCH A. Presidential Managerial Controls B. Accommodating Congressional Design of Administrative Adjudication with Executive Managerial Control 1. Veterans Access Act 2. The APA CONCLUSION INTRODUCTION

Commentators long have debated the scope of the Chief Executive's role in overseeing, enforcing, and at times reshaping the many programs and policies enacted by Congress. The Supreme Court has weighed in on conflicts between Congress's Article I powers and the Chief Executive's Article II authority often, most recently curbing the President's Recess Appointment authority. (1)

The question of the President's authority over adjudications that Congress has entrusted to administrative agencies has been examined less frequently. The tension is clear: on the one hand, the President should have inherent authority to manage the adjudications that Congress has seen fit to entrust to agencies to resolve; but on the other, political control over adjudication seems anathema to rights of litigants asserting claims against the government itself. Congress, therefore, may seek to curtail the executive branch's control of the adjudicative process to provide rights for individuals and firms involved in adjudications within the executive branch. (2)

This Article first examines the scope of the President's Article II authority to manage adjudications within the executive branch. This Article initially notes, as have others, that the Supreme Court has limited the President's removal and (to some extent) appointment authority over officials engaged in adjudication as opposed to other functions within the executive branch. The Article then argues that Congress, accordingly, should be able to delimit the President's more general Article II managerial authority over adjudicative officials as well. Finally, this Article considers the propriety of congressional directives that curb executive management efforts, particularly the congressional specification in the Administrative Procedure Act ("APA") (3) that Administrative Law Judges enjoy decisional independence.

1. THE NATURE OF ADJUDICATION WITHIN THE EXECUTIVE BRANCH

   Congress long has delegated extensive authority to the executive branch to adjudicate a wide variety of claims against the government, as reflected currently in the millions of immigration, veterans, and Social Security Disability cases resolved each year. (4) Moreover, it has delegated authority (albeit less commonly) for agencies to adjudicate disputes among private parties, as between labor and management under the National Labor Relations Act, (5) and formerly between shippers and common carriers under the Interstate Commerce Act. (6) Adjudicatory authority is a familiar feature of agency terrain.

   In placing adjudications within the executive branch, Congress presumably intends agencies, at least at times, to exercise policymaking through adjudication. (7) As within any common law system, rules to govern future behavior emerge through the adjudicative process. Private individuals and firms consult the decisions to order their behavior in the future. Congress cannot, of course, delegate traditional private rights to the executive branch for adjudication, but it can delegate a panoply of public rights for executive branch adjudication, (8) whether before Article I courts or administrative agencies.

   Consider litigation within the Securities and Exchange Commission. If the President could no longer appoint or remove SEC Commissioners, a court might conclude that he had insufficient influence over elaboration of critical financial policy. Adjudication within the executive branch involves not only factfinding but policy elaboration. Agencies such as the NLRB make policy almost exclusively through adjudication, (9) and it was the SEC's policymaking authority that triggered one of the Supreme Court decisions most deferential to agency policymaking through adjudication. (10) In SEC v. Chenery, the Court upheld the agency's authority to fashion new policy in the midst of a utility reorganization and then to apply that policy retroactively, stressing that the agency "has drawn heavily upon its accumulated experience in dealing with utility reorganizations. And it has expressed its reasons with a clarity and thoroughness that admit of no doubt as to the underlying basis of its order." (11) Moreover, those rules can be articulated in adjudications because "[t]here is ... a very definite place for the case-by-case evolution of statutory standards." (12)

   Policymaking, therefore, frequently arises out of the adjudications that Congress entrusts to the executive branch. Agencies are to interpret gaps in statutes and regulations (13) and determine the broad frameworks within which facts are to be assessed. And, as the Supreme Court famously explained in Chevron v. Natural Resources Defense Council,

   [A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices--resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities. (14) Absent sufficient say in development of that policy, Presidents could no longer superintend development of the tasks delegated to the executive branch by Congress.

   Aside from policymaking through statutory interpretation or crafting rules in adjudication, agencies also make policy less directly by crafting presumptions arising in adjudication. The Supreme Court has upheld the agency's right to create such presumptions in particular factual contexts. In Republic Aviation Corp. v. NLRB, (15) the question presented was whether an employer impermissibly discharged three employees for wearing UAW-CIO union steward buttons. (16) The employer argued that if it allowed employees to wear such buttons, employees would think that it implicitly favored that union, and it would thereby interfere with its employees' choice of a representative. The statutory touchstone was whether the employer's conduct discriminated against the employees by discharging them because of protected conduct. Motive is the linchpin. The Board created a presumption that an employer's permission for employees to wear union steward buttons, at least where there was no competing labor organization at the plant, did not imply recognition or support of that particular union. The Supreme Court ultimately affirmed, reasoning that, after a hearing, an agency may "infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven." (17) Agencies can generate rebuttable presumptions based upon the likelihood that certain facts constitute evidence of a statutory violation. Those presumptions reflect policymaking.

   Agencies not only can create presumptions, but they also can derive inferences from sets of facts based on their particular knowledge of the field. Even through factfinding, agencies fashion a type of subsidiary policy. When agencies decide...