and other executive branch officials. For example, in a recent draft paper
contending for constrained use of informal agency adjudication procedures,
Professor William Funk highlighted the beneficial requirement in formal
adjudication of stringent separation between agency investigators and
prosecutors and agency adjudicators232—a statutory procedural safeguard
currently present in the APA.233 Professor Asimow also has praised statutory
safeguards encouraging impartiality in agency adjudication. He has
recommended that protections such as separation of functions and restrictions
on ex parte contact be extended beyond just formal adjudication to govern
less formal proceedings.234
All such statutory protections for impartiality nonetheless must remain
compatible with the Chief Executive’s constitutionally required supervision
over agency matters including adjudication. Disputes at the federal level
impacting vested private rights235 should be resolved by Article III courts. In
contrast, genuinely executive matters should be resolved by adjudicators
subject to the ultimate appointment by, and supervision of, a democratically
accountable Chief Executive. These constitutional protections will help
ensure democratic liberty and transparency.236
When evaluating ALJs under the Appointments Clause, courts should
conclude both under modern doctrine and as a matter of first principles that
ALJs are “inferior Officers”—not employees. In changing the selection
mechanisms for ALJs to comply with Article II, Congress should subject
ALJs to the appointment of either a department head or the President.
In many cases where agencies just allocate various governmental benefits
or adjudicate governmental debt collection,237 there likely is no due process
or Article III problem with a properly appointed Article II officer following
232. See Funk, supra note 170, at 13–14 (analyzing a recent Administrative Conference
of the United States recommendation to encourage certain “best practices” for non-APA
adjudications (internal quotation omitted)).
233. See 5 U.S.C. § 554(d).
234. Michael Asimow, The Spreading Umbrella: Extending the APA’s Adjudication
Provisions to All Evidentiary Hearings Required by Statute, 56 ADMIN. L. REV. 1003, 1004,
235. See, e.g., Nelson, supra note 20, at 577–78 (explaining the historical example of the
distribution of public lands and observing that executive determinations were adequate “to
transfer the public’s interest in land to a private person” but judicial proceedings would have
been required to subsequently retract that newly vested private interest).
236. See, e.g., Amar, supra note 24, at 809 (referring to “the general liberty-enhancing
architecture of separation of powers”); Lawson, Rise and Rise, supra note 19, at 1248 (“The
constitutional separation of powers is a means to safeguard the liberty of the people.”).