36 Journal of Regulatory Compliance Issue II
To preserve the “chain of accountability”119 for executive adjudicators
within the Executive Branch, Congress should decline to submit ALJs to the
appointment authority, and concomitant removal authority, of the D.C.
Circuit, in the event the courts determine that ALJs are Article II officers.
Agency adjudicators should be appointed by either the President or a
Perhaps some may contend that keeping ALJ appointment and removal
authority within the Executive Branch would subject adjudicators to
improperly unrestrained presidential power, particularly since the Supreme
Court’s decision in Free Enterprise Fund v. Public Company Accounting
Oversight Board might be read to subject adjudicators to at-will employment
in the event they are officers.120 Under the apparent bright-line Free
Enterprise Fund principle,121 the removal chain from Article II officers to the
President may include at most one layer of tenure protection.122 Therefore,
if the Court were to conclude ALJs are “officers” and extend Free Enterprise
Fund to them, ALJs might lose all tenure protection as a constitutional
matter:123 ALJs appointed by the heads of independent agencies (themselves
arguably removable just for cause)124 presumably would not receive tenure
protection.125 And even ALJs appointed by heads of executive departments
subject to at-will removal would see their tenure protections decreased.126
Under current law the Merit Systems Protection Board (MSPB)—its own
members ensconced with tenure protection—has a say in disciplinary action
Within this current framework, ALJs in executive departments are subject
to two layers of removal protection.128 ALJs in independent agencies
119. See Mishra, supra note 105, at 1514.
120. See Barnett, supra note 9, at 801, 814–15; see also Free Enter. Fund, 561 U.S. at
542–44 (Breyer, J., dissenting) (expressing concern about ALJs being subject to the majority’s
holding). But see id. at 507 n. 10 (majority opinion) (expressly declining to decide to extend
the scope of the holding to agency adjudicators).
121. Cf. Mishra, supra note 105, at 1569 (observing the possibility that Free Enterprise
Fund either “adopted no bright-line rule for other cases” or adopted a rule for a subset of
executive officers based on a functionalist assessment of Article II).
122. See Free Enter. Fund, 561 U.S. at 483–84, 514.
123. See Barnett, supra note 9, at 800–01.
124. See Free Enter. Fund, 561 U.S. at 493 (describing Supreme Court precedent that
characterized independent agencies as “quasi-legislative and quasi-judicial” entities that may
be subject to good-cause tenure protections (internal quotation omitted)); id. at 542–44
(Breyer, J., dissenting) (describing the consequences for ALJ removals if the majority
opinion’s holding were to be extended to them).
125. See Barnett, supra note 9, at 814–15.
126. See id.
127. See id. at 800.