24 Journal of Regulatory Compliance Issue II
potential partiality and due process concerns, Professor Barnett recommends
that Congress authorize the D.C. Circuit—not the President or a department
head—to “appoint, discipline, and remove ALJs upon request from
administrative agencies.” 18
This essay relies on scholarship by Professors Gary Lawson, 19 Caleb
Nelson, 20 Philip Hamburger, 21 Nathan Chapman and Michael McConnell22 to
observe that as a matter of first principles, executive branch appointment of
ALJs raises no partiality or due process concerns if adjudicators act only
within the proper confines of executive adjudicative power. 23 In particular,
Part I of the essay highlights several points from judicial precedent, legal
scholarship,24 and early federal practice suggesting that agency adjudicators
may—and must—be subject to Appointments Clause strictures. Their
appointing entity must be one of the executive branch actors authorized to
make appointments under Article II. 25 ALJs should be appointed by a
department head or the President (with or without Senate consent)—not the
18. Barnett, supra note 9, at 802.
19. See generally Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV.
L. REV. 1231 (1994) [hereinafter Lawson, Rise and Rise]; Gary Lawson, Take the Fifth . . .
Please!: The Original Insignificance of the Fifth Amendment’s Due Process of Law Clause,
forthcoming B.Y.U. L. REV. 2017 (July 7, 2017 manuscript, online at
https://ssrn.com/abstract=2998733) [hereinafter Lawson, Take the Fifth].
20. See generally Caleb Nelson, Adjudication in the Political Branches, 107 COLUM. L.
REV. 559 (2007).
21. See PHILIP HAMBURGER, IS ADMINISTRATIVE LAW UNLAWFUL (2014) (chapters 12–
13) (demonstrating problems with agencies exercising the judicial power as opposed to
engaging in only “[l]awful [e]xecutive [a]cts [a]djacent to [a]djudication”).
22. See Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of
Powers, 121 YALE L.J. 1672, 1697 (2012) (“Fundamentally, ‘due process’ meant that the
government may not interfere with established rights without legal authorization and
according to law, with ‘law’ meaning the common law as customarily applied by courts and
retrospectively declared by Parliament, or as modified prospectively by general acts of
23. See, e.g., Lawson, Rise and Rise, supra note 19, at 1246–47 (“Much adjudicative
activity by executive officials . . . is execution of the laws by any rational standard . . . .”);
Nelson, supra note 20, at 559 (“[ I]n the nineteenth century, whether adjudication required
‘judicial’ power was thought to depend on the nature of the legal interests that the adjudication
would bind. Governmental officials needed ‘judicial’ power to dispose conclusively of an
individual’s legal claim to private rights that fit the template of life, physical liberty, or
traditional forms of property. But ‘judicial’ power was not considered necessary for
governmental adjudicators to make authoritative determinations adverse to other legal
interests, including legal interests held by the public as a whole and legal interests that jurists
classified as mere ‘privileges’ rather than core private ‘rights.’”).
24. See Akhil Amar, Intratextualism, 112 HARV. L. REV. 747, 804–12 (1999) (concluding
that lower-level executive officers must be appointed by executive branch actors—not by
courts of law).
25. See infra Part I.B (relying heavily on several points from Professor Amar’s article
“Intratextualism” as well as on analysis of the Vesting Clause and the drafting history of the