DOJ Position on Administrative Law Judges

Late last month, the Department of Justice filed a short statement regarding administrative law judges (ALJs).  The statement, issued by the Department’s Chief of Staff Chad Mizelle, states in its entirety:

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.

This statement followed a February 20, 2025 letter from Acting Solicitor General Sarah Harris to President Pro Tempore of the Senate Charles Grassley stating the same and noting that “the Department will no longer defend” the layers of removal restrictions for ALJs in court.  The letter stated that the Department had already taken this position in ongoing litigation, referencing a pending case before the U.S. Court of Appeals for the Third Circuit, Axalta Coating Systems LLC v. FAA, No. 23-2376.  This position breaks with almost 80 years of tradition and constitutional and statutory interpretation.

Since the enactment of the Administrative Procedure Act (APA) in 1946, ALJs have served an important role in conducting fair and impartial administrative hearings on behalf of agencies, typically submitting findings of facts and recommendations to agency heads used in adjudication.  The APA specifically instituted certain removal protections to ensure that the ALJs conducted hearings with impartiality and with independent decision-making.  See 5 U.S.C. § 556(b).  (For an in-depth review of the history of ALJs and the removal protections enacted by the APA, see Brief of Amicus Curiae Federal Administrative Law Judges Conference 8-20, SEC v. Jarkesy, No. 22-859 (Sept. 1, 2023)).

The constitutionality of ALJs has been a hot legal topic of late.  In a decision last year, United States v. Jarkesy, 603 U.S. 109 (2024), the Supreme Court upheld a decision by the U.S. Court of Appeals for the Fifth Circuit that the Securities and Exchange Commission’s (SEC) use of an administrative proceeding conducted by an SEC ALJ to impose a civil penalty violated the Seventh Amendment’s right to a jury trial.  The Court only decided Jarkesy on the Seventh Amendment issue and did not reach two other issues that the Fifth Circuit found were unconstitutional.  The first was whether Congress violated the nondelegation doctrine by allowing the SEC, without proper guidance, to choose whether to litigate the underlying civil penalty case in federal court or adjudicate it within the SEC.  The second issue was whether the insulation of SEC ALJs from executive supervision with two layers of “for-cause” removal protections violated the separation of powers.  When the decision came out, we (correctly) predicted that Jarkesy would have an impact on other administrative proceedings conducted by federal agencies (see our post here).

The constitutionality of DEA ALJs has already been challenged within the Fifth Circuit, relying on the appeal court’s decision in Jarkesy, including the nondelegation doctrine issue.  See Inmar Rx Solutions v. Garland, No. 3:23-cv-2883-E (N.D. Tex. Dec. 29, 2023).  And last week, consistent with the DOJ statement, the government advised the district court in that case that it would no longer defend the removal restrictions in that litigation.  See Defendant’s Notice of Change in Position, Inmar Rx Solutions, Inc. v. Bondi, No. 3:23-cv-2883-E, ECF No. 25-1 (N.D. Tex. Feb. 24, 2025).

The impact of this position statement—and how it will play out in federal courts with the new administration—is unclear.  It is possible this position may make it more difficult for litigants challenging the constitutionality of a proceeding presided by an ALJ, because the new administration has made it clear that they can remove the ALJ if they want to do so.  A series of recent cases has held that, unless there is evidence that the President wants to remove an official but cannot do so because of statutory limitations on his power, “there is no judiciable harm presented.”  Barlow-Ahsan v. Kijakazi, 2023 U.S. Dist. LEXIS 185877, at *24-25 (E.D. Pa. Oct. 17, 2023) (citing cases).  And even then, a litigant must show that “the agency action would not have been taken but for the President’s inability to remove the officer.”  Id. at *25.

Regardless, the status of ALJ hearings remains uncertain.  Many of our readers are familiar with ALJ hearings, especially those conducted before DEA, CMS, and USDA.  And for all litigants in those hearings, certainty in the process and impartiality are essential.  At this point, it is not clear what further steps the new administration may take or the effect the Department’s new position may have on litigants in ALJ hearings.  We will continue to monitor and keep you informed.