America needs independent judges

In recent years, National Football League commissioner Roger Goodell has come under fire for his seemingly arbitrary and absolute uses of power. Most recently, he effectively sanctioned an ongoing player protest by requiring players to stand for the national anthem or remain in the locker room, with fines for clubs that fail to comply with this requirement. Many are troubled not only by his substantive decisions, but also the ways his use of  power can subject individual players to unequal treatment based on his unreviewable decisions on who and how to discipline.

This runs afoul to our democratic notions of fairness and equal treatment. In a similar vein, but receiving much less national attention, President Trump recently issued an executive order removing administrative law judges from the competitive service to the exempted service, further politicizing the federal civil service workforce.

{mosads}Why should we be concerned? Within federal agencies, administrative law judges have worked to ensure that decisions made are not arbitrary and applied indiscriminately. Congress created federal agencies to carry out important government responsibilities, such as deciding on minimum safety requirements for automobiles and prescription drugs, fining companies that pollute groundwater, determining eligibility to receive disability benefits, assessing whether an employer has violated worker rights, and deciding which inventor is entitled to a patent. The idea was to infuse decisions with independent expertise often unavailable or impractical for Congress.

Thus, while federal agencies are headed by political appointees, most agency workers are civil servants who are ideally hired based on professional merit through a competitive application process. Indeed, Congress designed much agency work to harness experts with training and education to make decisions driven by evidence and congressional intent. Administrative law judges have been part of this system, acting in many ways like courts to help agencies address individual claims facing government agencies based on fairness and unbiased expertise.

Both Congress and courts have recognized the value of independent administrative law judges. Congress, through the Administrative Procedure Act, spelled out requirements that agencies must follow in making these important decisions impacting the public, such as keeping administrative law judges separate from the investigative functions of agencies. Courts have also required agencies to provide hearings when due process rights such as property or liberty are implicated.

Thus, for certain types of cases like those before the Social Security Administration, the Securities and Exchange Commission, the Nuclear Regulatory Commission, or the Federal Energy Regulatory Commission, courts have required that administrative law judges preside because of to their ability to provide fairness and due process.

Currently, the federal government has approximately 2,000 administrative law judges, with the largest number in the Social Security Administration. These judges consider the evidence submitted by the government agency and the affected party, including testimony from witnesses, and make decisions about which party should prevail. While these administration law judges are employees of the agency, they have intentionally been shielded from simply being political operatives.

One such protection is having the selection of administrative law judges structured as a competitive process administered by the more independent federal Office of Personnel Management, rather than by political appointees within each agency. Administrative law judges, unlike agency political appointees, cannot be removed for making a decision against the agency or the policies of a given administration.

Despite these protections, many scholars and lawmakers have raised concerns that administrative law judges do not have enough autonomy from agency politics. In fact, former senator Hal Heflin of Alabama introduced a bill in 1983 to strengthen the independence of administrative law judges. The bill did not remove administrative law judges from the executive branch completely, but rather moved all administrative law judges out of individual agencies and into a unified corps. This bill did not pass Congress, but such a solution is worthy of revisiting.

The new executive order runs counter to these long standing calls for independence of administrative law judges. Rather than enhancing the neutrality of administrative law judges, the executive order diminishes them by making their hiring subject to political considerations. It means that administrative law judges will be more akin to Roger Goodell than a Supreme Court justice, no longer bound by precedent and legal reasoning, but rather incentivized to decide cases to advance political, not legal, objectives. This calls for Congress to protect the continued independence of administrative law judges.

Steph Tai is a law professor at the University of Wisconsin who represents amici in federal court and Supreme Court cases. Erin Corcoran is executive director of the Kroc Institute for International Peace Studies and faculty at the Keough School of Global Affairs at the University of Notre Dame.