The Department of Justice under President Trump has determined that the multiple layers of removal restrictions shielding administrative law judges (ALJs) are unconstitutional.
The DOJ has concluded that current laws make it too difficult for the government to remove ALJs from their positions. These laws require multiple steps and layers of approval before an ALJ can be fired, which limits the President’s power.
ALJs in the United States are supposed to be “impartial officials” who preside over administrative hearings within federal agencies. They operate within the executive branch, not the judicial branch.
A letter from Acting Solicitor General Sarah Harris to Senator Chuck Grassley (R-IA) outlined the DOJ’s stance, explaining that restrictions preventing the removal of ALJs under 5 U.S.C. 1202(d) and 7521(a) are unconstitutional under Article II of the U.S. Constitution.
5 U.S.C. 1202(d) states, “Any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.”
5 U.S.C 7521(a) states, “An action may be taken against an administrative law judge appointed under section 3105 of this title by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.”
The DOJ’s position aligns with the Supreme Court’s 2010 Free Enterprise Fund v. Public Company Accounting Oversight Bd. decision, which struck down similar “multilayer protection from removal” for executive officers. The Court ruled that such barriers were an unconstitutional infringement on the president’s authority to oversee executive officers.
In the DOJ letter, Harris referenced this ruling, emphasizing that removal restrictions preventing ALJs from being held accountable create an unconstitutional chain of protection, limiting the president’s ability to ensure executive officials serve the public interest.
The DOJ has also announced it will no longer defend these removal restrictions in court, a major policy shift.
The letter reads:
Pursuant to 28 U.S.C. 530D, I am writing to advise you that the Department of Justice has concluded that the multiple layers of removal restrictions for administrative law judges (ALJs) in 5 U.S.C. 1202(d) and 7521(a) violate the Constitution, that the Department will no longer defend them in court, and that the Department has taken that position in ongoing litigation. See 2/11/25 Letter, Axalta Coating Systems LLC v. FAA, No. 23-2376 (3d Cir.).
In Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), the Supreme Court determined that granting “multilayer protection from removal” to executive officers “is contrary to Article Il’s vesting of the executive power in the President.” Id. at 484.
The President may not “be restricted in his ability to remove a principal [executive] officer, who is in turn restricted in his ability to remove an inferior [executive] officer.” Ibid.
A federal statute provides that a federal agency may remove an ALJ “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.” 5 U.S.C. 7521(a).
Another statute provides that a member of the Board “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. 1202(d).
Consistent with the Supreme Court’s decision in Free Enterprise Fund, the Department has determined that those statutory provisions violate Article II by restricting the President’s ability to remove principal executive officers, who are in turn restricted in their ability to remove inferior executive officers.
Please let me know if I can be of any further assistance in this matter.
Today, the Department of Justice determined that multiple layers of removal restrictions shielding administrative law judges (ALJs) are unconstitutional. pic.twitter.com/lcfPskwkQq
— Chad Mizelle (@ChadMizelle47) February 21, 2025
More from far-left New York Times:
The Trump administration told Congress on Thursday that it believed President Trump had the constitutional power to summarily fire administrative law judges at will, despite a statute that protects such officials from being removed without a cause like misconduct.
The move was the latest step in the administration’s unfolding assault on the basic structure of the federal government and on Congress’ power to insulate various types of executive branch officials in sensitive positions from political interference from the White House. The Trump administration disclosed its approach in a letter from Sarah M. Harris, the acting solicitor general.
Administrative law judges preside over administrative hearings in executive branch agencies. They are executive branch officials, not life-tenured members of the judicial branch, but they still perform judges’ role, including by administering oaths, taking testimony, ruling on evidentiary questions, and making factual and legal determinations.
Examples of such officials include Social Security Administration judges who handle disputes about disability and retirement benefits; National Labor Relations Board judges who resolve unfair labor practice cases; and Federal Energy Regulatory Commission judges who hear disputes about matters like electric utilities and regional grids.
To insulate the officials from political interference, Congress enacted a statute that says disciplinary action, including firings, may be taken against such judges “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the board.”
The post Trump DOJ Declares Multi-Layered Protections for Administrative Law Judges Unconstitutional, Dismantling Longstanding Shield for Unelected Bureaucrats appeared first on The Gateway Pundit.