Despite a provision that prevents the removal of administrative law judges without a valid reason, such as misconduct, the Trump administration informed Congress on Thursday that it felt President Trump had the constitutional authority to dismiss them summarily at will.
The action was the most recent in a series of attacks by the administration on the fundamental framework of the federal government and Congress' authority to shield key executive branch officials from White House political meddling. Sarah M. Harris, the acting solicitor general, wrote a letter outlining the Trump administration's strategy.
In executive branch agencies, administrative proceedings are presided over by administrative law judges. Despite not being life-tenured members of the judicial branch, they are executive branch officials who still carry out the duties of judges, such as administering oaths, hearing testimony, rendering decisions on evidentiary issues, and reaching factual and legal conclusions.
Judges from the Social Security Administration decide cases involving disability and retirement benefits; judges from the National Labor Relations Board decide cases involving unfair labor practices; and judges from the Federal Energy Regulatory Commission hear cases involving issues like regional grids and electric utilities, these are examples of such officials.
Congress passed a law stating that judges may be subject to disciplinary action, including termination, "only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the board." This was done to protect the officials from political meddling.
In a little-known filing in an appeals court case on February 11, the Justice Department stated that it would no longer defend the validity of the law protecting administrative law judges. Ms. Harris' letter to Congress also brought this to the attention of the general public.
In that instance, a paint manufacturer is contesting a punishment levied by a Transportation Department administrative law judge for breaking a federal regulation requiring paint cans to be wrapped to prevent leaks during air travel. Among other things, the company is saying that the judge's position is unconstitutional because the president cannot dismiss such a judge at any time.
Ms. Harris supported her opinion by citing a 2010 Supreme Court decision that invalidated a law that gave Congress two levels of protection from presidential authority over a certain government agency. Members of the Securities and Exchange Commission, who were in turn under the supervision of the agency's board, were likewise subject to removal for justifiable reasons.
Similarly, Ms. Harris stated that administrative law judges are not only shielded by the law that states they can only be dismissed for good reason, but Congress also placed the Merit Systems Protection Board in charge of determining whether there was good reason to fire them rather than the president.
A statute that states that its members "may be removed by the president only for inefficiency, neglect of duty, or malfeasance in office" shields that board, which is a crucial component of the civil service protections Congress established to professionalize the federal workforce and prevent political patronage, from direct presidential control.
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