the meritorious candidates is the President or a department head and (ii) the
panelists scoring candidates are themselves properly appointed,156 merit-based selection of ALJs may very well comport with Article II.
3. Does a Change in the ALJ Appointment Structure Impact the
Fairness of Agency Adjudicative Proceedings?
Perhaps some may object that raising fairness concerns about the alteration
of the ALJ appointment structure really is much ado about nothing. After all,
the agency heads already are subject to Appointments Clause
requirements.157 And the APA requires agencies to give such little deference
to ALJ decisions158 that an ALJ’s determination has minimal impact on the
fairness of the outcome in any given case. How can subjecting ALJs to
Article II procedures make agency adjudication any more biased than it
already is in light of the potentially non-deferential review of ALJ decisions
by politically appointed agency heads?
On one level, this is a very good point. Agency heads already have some
potential influence over agency adjudicative outcomes.
But acknowledgement of this role simply further underscores the need to
reexamine whether agency adjudication, through and through, might be
subject to so much executive influence that certain private rights matters are
inappropriate for executive adjudicative resolution altogether. Perhaps such
matters instead should be transferred to the jurisdiction of constitutionally
impartial Article III courts.159
Further, first-level agency decision-makers like ALJs enjoy their own
substantial federal authority despite the oversight of agency heads. For
example, if an ALJ’s decision is not challenged, by default under the APA it
may “become the decision of the agency without further proceedings.”160
Even if the agency reviews the ALJ’s initial decision, the ALJ’s earlier
ATT’Y GEN. 516, 518–20, 524–25 (1871) (concluding that it would be unconstitutional for
merit-based requirements to limit the President to one specific officer candidate but merit-based requirements limiting the President to choosing from a class of candidates may be okay).
156. See Mascott, supra note 8, at Part IV.A. 2.b.ii.
157. See, e.g., 15 U.S.C. § 78d(a) (subjecting SEC Commissioners to appointment by the
President with Senate advice and consent).
158. See 5 U.S.C. § 557(b) (“On appeal from or review of the initial decision, the agency
has all the powers which it would have in making the initial decision except as it may limit the
issues on notice or by rule.”); Barnett, supra note 9, at 799 (observing that agencies “can
reverse ALJs’ decisions in toto”).
159. See infra Part II.
160. 5 U.S.C. § 557(b). That said, the practice of certain agencies may be to require
further agency action before an ALJ’s decision becomes final agency action, at least for
purposes of judicial review. For example, in the D.C. Circuit’s Lucia case, the SEC’s
regulations require the Commission to “enter an order of finality as to each party.” See 17
C.F.R. § 201.399(b)( 1), (d)( 1)–( 2).