40 Journal of Regulatory Compliance Issue II
Under current law ALJs are selected utilizing a merit-based system.146
Similar to the competitive service system in general, a panel scores ALJ
candidates.147 Several top-ranked candidates then are presented to the
relevant agency who selects from among them to make the appointment.148
As Professor Barnett has observed, the primary reason this process may be
unconstitutional if ALJs in fact are “officers” is because some agency heads
currently selecting ALJs are not department heads149—at least not under the
Supreme Court’s interpretation of that phrase.150 But the main gist of the
merit-based ALJ selection process might be permissible.
Based on examination of “the text, history, and structure of the
Constitution,” Professor Hanah Metchis Volokh has presented arguments
suggesting that “statutory qualifications are consistent with the
Constitution’s process for vested [or, “inferior Officer”] appointments.”151
The earliest evidence of congressional practice suggests such qualifications
in fact were quite modest, such as the requirement that an Attorney General
be “learned in the law.”152 That said, merit-based evaluation of at least some
executive branch officials has been occurring since as early as the mid-19th
century.153 And Congress’s Article II power to “establish by Law”
executive offices may include textual authority to place conditions on who
may fill those offices.154 If so, merit-based selection requirements may be
just another permissible condition of office-holding that Congress imposes
on the offices it creates.155 As long as (i) the final entity selecting from among
146. See Barnett, supra note 9, at 804–05; see also VANESSA K. BURROWS, CONG.
RESEARCH SERV., RL34607, ADMINISTRATIVE LAW JUDGES: AN OVERVIEW 2–3 (2010)
(explaining that the Office of Personnel Management scores ALJ applicants and places those
receiving a passing score on a register listing eligible hires; agencies then select from among
the top three candidates).
147. See Barnett, supra note 9, at 804–05.
148. See id.
149. Id. at 800.
150. See Free Enter. Fund, 561 U.S. at 511 (defining a department as “a freestanding
component of the Executive Branch, not subordinate to or contained within any other such
151. Volokh, supra note 58, at 745.
152. Id. at 769 (internal quotation omitted); see also Mascott, supra note 8, at Part
IV.A. 2.b.ii (collecting references to the minimalist statutory qualifications that the First
Federal Congress imposed on various governmental positions).
153. See Mascott, supra note 8, at Part IV.B. 1.
154. Volokh, supra note 58, at 759–60 cf. id. at 760– 62 (finding additional support for
the idea that Congress may impose qualifications on inferior officers in the distinct
Appointments Clause phrase, “as they think proper” (U.S. CONST. art. II, § 2, cl. 2: “but the
Congress may by Law vest the Appointment of such inferior officers, as they think
proper . . .”).