In a significant legal development, the U.S. Department of Justice (DOJ) has announced that it considers the removal restrictions for administrative law judges (ALJs) to be unconstitutional. Sarah Harris, Acting Solicitor General of the DOJ, conveyed this determination in a letter addressed to President Pro Tempore of the U.S. Senate, Charles Grassley. Harris indicated that the DOJ will henceforth refrain from defending these restrictions in court, aligning with the precedent set by the U.S. Supreme Court in Free Enterprise Fund v. PCAOB.
The Supreme Court, in that case, found that the layers of tenure protection for executive officers impede the president’s constitutional obligation to “take care that the laws be faithfully executed,” as outlined in the Constitution. DOJ Chief of Staff Chad Mizelle supported this stance, asserting that undue protection of unelected ALJs disrupts the accountability of Executive Branch officials to the President and the electorate. Mizelle’s statement emphasized restoring constitutional accountability.
ALJs, as defined by legal sources, serve as fact-finders and legal arbiters within federal agencies, and their removal is constrained to “good cause” as determined by the Merit Systems Protection Board (MSPB). The restrictions on removal have been contested by the DOJ, which argues that they limit executive flexibility. However, the Association of Administrative Law Judges (AALJ) opposes this determination, viewing it as an overreach that threatens the independence and impartiality of judicial proceedings.
The DOJ’s position emerges against the backdrop of recent legal challenges involving the MSPB. Cathy Harris, the board’s chair, is pursuing a lawsuit challenging her removal by former President Trump, a move which echoes previous assertions by the Office of the Special Counsel’s Hampton Dellinger regarding permissible reasons for removal. A federal district court sided with Dellinger, blocking his firing and prompting the Trump administration to appeal to the Supreme Court.
As this issue unfolds, it remains a focal point for constitutional experts and federal agencies alike, especially in its potential implications for executive and judicial accountability. The original coverage can be found in more detail on JURIST – News.