Labor & Employment Law Daily Wrap Up, DOJ NEWS—Federal agency ‘determined’ removal restrictions ‘shielding’ ALJs are ‘unconstitutional’, (Feb 21, 2025)
By Brandi O. Brown, J.D.
The Acting Solicitor General also wrote to advise Congress of this conclusion.
In a statement issued yesterday on the Justice Department’s website, the agency is now taking a stance against removal restrictions on ALJs. The statement reads, in total:
“Today the Department of Justice determined that multiple layers of removal restrictions shielding administrative law judges (ALJs) are unconstitutional.
Unelected and constitutionally unaccountable ALJs have exercised immense power for far too long. In accordance with Supreme Court precedent, the Department is restoring constitutional accountability so that Executive Branch officials answer to the President and to the people.”
Letter to Senator Grassley. The statement conforms with a letter also sent yesterday by the Acting Solicitor General, Sarah Harris, to Senator Charles Grassley. In the letter, Harris, wrote that Free Enterprise Fund v. PCAOB, a 2010 U.S. Supreme Court decision, “determined that granting ‘multilayer protection from removal’ to executive officers ‘is contrary to Article II’s vesting of the executive power in the President.’”
Foreshadowed. As reported by the New York Times, this stance was foreshadowed earlier this month in a Third Circuit appeal, Axalta Coating Systems LLC v. FAA, in which a representative of the Civil Division, Appellate Staff, wrote to notify the court that the Acting Solicitor General had reached this same conclusion regarding ALJs.
Under 5 U.S.C. § 7521, an action may be taken by an ALJ, appointed under 5 U.S.C. § 3105, “by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.” With certain exceptions, actions covered include removals.
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