On February 20, Acting Solicitor General Sarah M. Harris wrote to Sen. Charles Grassley (R-IA), President pro tempore of the Senate, and Rep. Mike Johnson (R-LA), Speaker of the House, to disclose that, pursuant to 28 U.S.C. § 530D, DOJ will no longer defend the constitutionality of statutes that protect administrative law judges (ALJs) from removal by officials that are themselves removable only for cause. The letter pointed out that 5 U.S.C. § 7521(a) provides that a federal agency may only remove an ALJ for good cause, determined by the Merit Systems Protection Board, and that another statute, 5 U.S.C. § 1202(d), provides that a board member may be removed by the President only for inefficiency, neglect of duty, or malfeasance.
DOJ asserted that multiple layers of removal restrictions shielding ALJs are unconstitutional. The letter cited the U.S. Supreme Court’s decision in Free Enterprise Fund v. PCAOB, which ruled that multilayer protection from removal for certain executive officers contradicted Article II’s vesting of executive power in the President — but the letter failed to note that the Supreme Court’s decision expressly declined to decide whether these removal restrictions were unconstitutional in the context of ALJs. In SEC v. Jarkesy, the U.S. Court of Appeals for the Fifth Circuit held that statutory removal restrictions for the SEC’s ALJs are unconstitutional because they violated the Take Care Clause of Article II. As previously covered by InfoBytes, the Supreme Court affirmed the 5th Circuit’s decision on alternative grounds, but did not address the removal restrictions for the SEC’s ALJs.
DOJ will no longer defend these statutory provisions in court. Accordingly, DOJ’s letter follows another letter submitted over a week earlier in a case pending in the U.S. Court of Appeals for the Third Circuit, informing the Court that DOJ would not defend the removal restrictions applicable to ALJs, but would continue defending the case on the ground that those subject to ALJ proceedings must demonstrate harm caused by the removal restrictions.
