On February 18, 2025, President Trump issued Executive Order 14215 “Ensuring Accountability for All Agencies,” Section 7 of which provides that: “[t]he President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.”[1]
While the directive seems consistent with the President’s Article II constitutional role as chief executive,[2] in the context of administrative litigation, it appears to interfere with the independent legal judgment that one would expect of federal administrative law judges (ALJ). Are such judges now legally bound to apply the President’s interpretation of the law and regulation, regardless of the propriety of such an interpretation? And if so, how does this square with the perceived ethical obligation of such judges to render independent judgments?
These are not simple questions to answer. ALJ conduct must be within the guard rails established in the Administrative Procedure Act, such as not being subject to the influence of agency investigators or prosecutorial personnel.[3] But the Act says nothing about how ALJs should interpret the law. Those ALJs who are members of their state bar are, of course, subject to their state’s Code of Ethics for attorneys. Although the National Conference of Administrative Law Judges of the American Bar Association has written a Model Code of Judicial Conduct for Federal Administrative Law Judges,[4] with a few minor exceptions, that code has not been officially adopted as part of federal law or regulation. [5] The provisions of that code, that ALJs should uphold the integrity and independence of the administrative judiciary, be unswayed by partisan interests, and be faithful to the law seem inconsistent with the EO’s mandate to apply only the President’s interpretations of the law. Along these lines, according to at least one commentator, when reviewing claims involving ALJs, the federal Office of Personnel Management (responsible for disciplining ALJs) has loosely applied provisions of the American Bar Association Code of Judicial Conduct.[6] Given that code’s emphasis on impartiality, fairness, and adherence to the law, one would expect ALJs to exercise independent legal judgment.
Apparently, I am not the first to question the broad sweep of this Executive Order. In Democratic National Committee et al v. Donald J. Trump, the plaintiffs allege that the President exceeded his executive authority by requiring federal election commissioners to adhere to the legal interpretations of the President, who is head of the Republican Party, in contravention of the Federal Election Campaign Act.
The independence of federal administrative law judges is actively in dispute in at least one current case. In Lemelson v. Securities and Exchange Commission, the defendant Lemelson argued that sanctions imposed on him by the SEC were unconstitutional in part because the SEC’s Administrative Law Judges were not independent judges under Article III of the Constitution[7] nor are they legitimately Article II officers because they are protected from removal by tenure provisions of federal law. While the Department of Justice previously defended against the first position because ALJ’s are protected from removal by tenure provisions, which rendered them independent, after the President issued EO 14215, the DOJ reversed its position: “the Acting Solicitor General has decided that the multiple layers of removal restrictions for administrative law judges in 5 U.S.C. § 7521 do not comport with the separation of powers and Article II and that the United States will no longer defend them in litigation.”[8] In effect, the DOJ’s current position appears to be that ALJs who do not follow the President’s interpretation of the law are subject to removal, and that any protections from such removal are unconstitutional under Article II. As such, the DOJ and current administration would obviously take the position that such judges are not independent Article III judges but are subject to the direction and control of the President and his interpretations of law.
As pointed out in my previous blog post on the Jarkesy decision,[9] in which the Supreme Court ruled that administrative tribunals could not impose penalties because they do not afford a defendant with a jury trial as guaranteed by the seventh amendment to the Constitution, the trend appears to be towards making adjudicatory hearings and decisions essentially irrelevant or, at least from a defendant’s perspective, a loaded deck.
Citing Marbury v. Madison, at least one commentator notes that because the EO does not apply to the judicial branch, which has the authority to review appeals of agency decisions, defendants are entitled to independent judicial review of the executive branch's improper interpretations of law.[10] This is cold comfort to those who expect fair, impartial, and independent judgments in adjudicatory proceedings before federal agencies.[11] Under the federal Administrative Procedure Act, parties must exhaust administrative remedies before they can resort to the courts.[12] In practice, this typically means that a party who disagrees with an Agency determination must go through the adjudicatory review process, involving litigating before an administrative law judge, to achieve a final decision, before that party can take its claim to the courts. If ALJs are indeed bound to follow the President’s interpretation of law, regardless of the propriety of that interpretation, appellants should expect their legal arguments contrary to such interpretations to get short shrift before an ALJ and will have to pay and wait for a final decision before availing themselves of a truly impartial judge.
It is too early to predict whether ALJs will ultimately comply with, and whether the Courts will enforce or eschew, the President’s directive. Nevertheless, we will continue to be prepared to ensure that agencies and ALJs before whom we practice give our clients a fair shake.
