arguably are subject to three.129 Consequently, the application of Free
Enterprise Fund to agency adjudicators may suggest the tenure-protected
MSPB should no longer supervise the removal of tenure-protected ALJs.130
That said, the Court in Free Enterprise Fund indicated its prohibition on
double for-cause tenure protection hinged in large measure on the specific
facts before the Court, in particular the type of authority exercised by the
relevant powerful officers at issue in the case.131 The Court in fact
affirmatively suggested that its holding did not address adjudicative officials
like ALJs.132 Members of the Court seem to have become more focused on
structural accountability for the administrative state in recent years,133 so
perhaps the Court would extend the Free Enterprise Fund principle to ALJs
if such a case came before it today.134 But the language in Free Enterprise
Fund expressly reserved for another day the issue of precisely which
governmental positions might come within the general scope of the Court’s
double for-cause removal ban.135 The Supreme Court’s multi-factor
approach to evaluating Article II appointment and removal in Morrison v.
Olson136 apparently continues to govern all removal restrictions except any
that specifically fall within the scope of Free Enterprise Fund’s carve-out for
certain double for-cause removal bans.137
129. See id. at 815.
130. See id. at 800–01.
131. See Free Enter. Fund, 561 U.S. at 506–08 (referring to the “size and variety of the
Federal Government,” which “discourage[s] general pronouncements” on particular positions
not before the Court).
132. See id. at 507 n. 10.
133. See, e.g., Mich. v. E.P.A., 135 S. Ct. 2699, 2712–14 (2015) (Thomas, J., concurring)
(questioning the allocation of judicial interpretive authority to agencies in the form of Chevron
deference); Dep’t. of Transp. v. Amer. Ass’n of R.R., 135 S. Ct. 1225, 1234 (2015) (Alito, J.,
concurring) (noting that “[l]iberty requires accountability” and the public should take notice
when the government tries to pass off regulatory authority to a supposedly private entity); City
of Arlington v. F.C.C., 133 S. Ct. 1863, 1877–78 (2013) (Roberts, C.J., dissenting) (noting the
potential for tyranny posed by administrative agencies’ accumulation of undifferentiated
executive, legislative, and judicial power).
134. See, e.g., Free Enter. Fund, 561 U.S. at 483–84 (implying that the Court was not
revisiting its approval of removal restrictions in Humphrey’s Executor v. United States, 295
U.S. 602 (1935), Morrison, and Perkins in part because the parties had not asked the Court to
do so); id. at 513–14 (closing the opinion with strong, broad-based language stating that the
President must have the power “to remove those who assist him” and the restriction of “two
levels of protection from removal” generally is inappropriate for those who “exercise
significant executive power”).
135. See id. at 506. But see Barnett, supra note 9, at 815–16 (contending that the majority
opinion’s explanation for why its holding may not extend to ALJs is “unsound as stated”).
136. See Morrison, 487 U.S. at 685–96 (analyzing numerous factors to determine the
constitutionality of the independent counsel removal restrictions as the Court believed there
are no “rigid categories of . . . officials who may or may not be removed at will by the