Jan 28, 2019 Kathryn Watts
Kent H. Barnett,
Some Kind of Hearing Officer, 94
Wash. L. Rev. __ (forthcoming 2019), available at
SSRN.
When Congress enacted the Administrative Procedure Act (APA) in 1946, it expected that what we now call Administrative Law Judges (ALJs) would preside over most federal agency evidentiary hearings. Over time, however, the number of so-called “non-ALJ” adjudicators has ballooned. As a result, non-ALJ adjudicators vastly outnumber ALJs today by a ratio of about 5:1. Yet despite the prominent role currently played by non-ALJs, very little is known about them. In a forthcoming article titled Some Kind of Hearing Officer, Professor Kent Barnett seeks to change that.
Professor Barnett’s article does three important things. First, it begins by describing how existing due process jurisprudence has little to say about impartiality in the adjudicatory arena, leaving the task of designing optimal process largely in Congress’s hands. When Congress enacted the APA in 1946, it spelled out a fairly detailed scheme to promote impartiality in the context of formal adjudicatory hearings conducted by ALJs. For example, the APA makes clear that ALJs cannot engage in prosecutorial or investigative functions. In addition, the APA generally prohibits ALJs from engaging in ex parte communications. Yet when it comes to non-ALJs, Congress did not set forth similar constraints. The end result, as Professor Barnett points out, is that Congress effectively has delegated the task of determining optimal process in informal adjudications—and, more specifically, ensuring the impartiality of adjudicators—to individual agencies. And, as one might imagine, agencies have come up with all sorts of different ways of approaching the issue of impartiality in informal adjudications.
This leads to the second important contribution that Professor Barnett makes in his forthcoming article: Professor Barnett reports some key findings of a detailed survey that he and other researchers sent to 64 federal departments, agencies, and subcomponents within them while working as consultants for the Administrative Conference of the United States (ACUS). The findings shed significant light on how different agencies have approached the question of non-ALJ impartiality. Among other things, the findings demonstrate that agencies often do not consider subject-matter expertise when hiring non-ALJ adjudicators. In addition, more than 40 percent of non-ALJ adjudicators have no required separation of functions. Furthermore, a large proportion of non-ALJ types are subject to performance reviews, and of those non-ALJ types who are subject to performance reviews, more than 70 percent are eligible for bonuses. These and the many other findings that Barnett reports are important because, as a historical matter, little data has been collected on non-ALJ adjudicators. Barnett’s work, in other words, begins to pull the cover back from the administrative state’s previously hidden judiciary.
Third, after reporting his findings about non-ALJs, Professor Barnett argues that much more data is needed. To this end, he proposes the use of a uniform, one-page agency disclosure form. His proposed disclosure form—which would be answered by federal agencies and then made publicly available—would provide Congress, the Executive Branch, and litigants with key information about non-ALJs’ impartiality protections. The disclosure form, for example, would ask agencies to disclose, among other things: whether hiring qualifications exist for the presiding officer; whether the presiding officer is prohibited from reporting to an individual with enforcement duties; and whether the presiding official can be paid performance bonuses by the agency. According to Professor Barnett, such a disclosure form might uncover various impartiality gaps and thereby prompt agencies—or Congress—to address gaps that emerge. In addition, Professor Barnett argues that his proposed disclosure regime could help litigants to better understand the process to which they are subject, thereby recognizing their dignitary interests and improving public trust in the administrative system.
I am much less convinced than Professor Barnett is that disclosing impartiality gaps will do much to help recognize litigants’ dignitary interests or improve public trust. Given that litigants may well have no choice about the process to which their claims are subjected, it seems unlikely that litigants’ trust in the system will increase if they are provided with disclosure forms that document impartiality gaps. Nonetheless, I agree with Professor Barnett that disclosure would be a very good thing to the extent that it might nudge—or even perhaps “shame,” as Barnett puts it—Congress and agencies to respond to significant impartiality gaps that are revealed.
It is, of course, quite possible that neither agencies nor Congress will take action to ensure more optimal process, even if Professor Barnett’s recommended disclosure system is implemented and even if it reveals significant impartiality gaps. But that’s a problem for a different day. For now, I agree with Professor Barnett that gathering more information—and continuing to try to shed more light on the hidden administrative judiciary—would be a good first step.
Jan 11, 2019 Anne Joseph O'Connell
Miriam Seifter,
Understanding State Agency Independence, 117
Mich. L. Rev. __ (forthcoming 2018), available at
SSRN.
In recent decades, our field of administrative law has taken an empirical turn, at least in part. We now know more about on-the-ground practices of federal agencies and their treatment in the federal courts, for example. Our focus, however, has been relentlessly on the federal level. To the extent that scholars look outside the federal government, to states or to private entities, for instance, they almost always examine the interaction with federal entities. Miriam Seifter’s work should divert your attention to the states—both to learn about state practices and to consider what those practices might tell us about federal institutions.
In her latest piece, Understanding State Agency Independence, Seifter examines agency independence at the state level and uses that examination to contribute a new perspective on agency independence at the federal level.
It would be easy to get lost in the details of state practices, but Seifter organizes the piece coherently to make important broader points (while not losing rich institutional details). Seifter first recaps debates about federal agency independence before looking at the constitutional origins of state agency independence, then moving onto state courts’ treatment of agency independence, turning next to the contestation of independence (and shifting agency designs) outside the courts, and concluding by thinking about lessons for federal administrative law from the state practices she has studied.
There is so much to praise in this article. To start, the descriptive work about state practices is stunning. Christopher Berry and Jacob Gersen, among others, asked us to contemplate whether a plural executive would be a better design for our federal system, drawing on the “unbundled executive” at the state level (where, for example, governors are often elected separately from attorneys general). Seifter starts with these state practices, some of which were “woven into the design of the earliest state constitutions.” There are 43 states that elect an attorney general, but only one state (Louisiana) elects an ethics official. Overall, “state constitutions establish 497 constitutional offices, 210 of which are separately elected.” You may have heard of the unbundled executive, but you may not know how many state constitutions “prescrib[e] legislative appointment of particular officials, or even an entire set of officials.”
Seifter then pivots to these constitutional agencies, where the state’s citizens do not elect their leaders and where the constitutional text does not provide for how the top officials are to interact with the governor. In addition, she considers multi-member boards and commissions that are not in states’ constitutions (except, in some instances, as a general class). Seifter, however, does not simply show the complexity of state institutions at a particular point. She also demonstrates that agency designs at the state level have often shifted over time. I am less certain of, but quite intrigued by, her claim that the independence of federal agencies “has been a sticky phenomenon,” by contrast. Federal agencies change structure too—for instance, the Post Office in 1971 and some financial agencies after the last financial crisis. These shifts at the federal level, however, do seem different from state legislatures changing agency designs to advance more nakedly partisan goals. Indeed, in lame duck sessions, several states have worked to change agency independence. (And should we compare the federal system against all the states, or just against an average state?) I look forward to more empirical work assessing Seifter’s provocative (and plausible) claim that state agency structures have been more malleable than federal ones.
Seifter makes a number of clever, original, and compelling observations and arguments from the descriptive details she has unearthed. Here are just three that struck me. First, the separate selection (by the legislature or election) of some agency leaders in the states—the unbundled executive—should not be conflated with independence. Separate elections, for example, play a role in, but do not determine, how such agency leaders will interact with the governor. Second, in contrast to the federal courts, state courts in New Mexico (and in other states) have taken a non-binary, non-categorical approach to agency independence. In other words, these courts do not see state entities as being in one of only two buckets (independent and non-independent), and they “do not use the term ‘independent agency’ (or any similar term) to invoke a trans-substantive category.” Third, unlike the federal system where removal is seen as an inherent executive power, governors’ removal power is a matter of positive law.
This article has made me rethink federal practices, particularly issues surrounding the removal of agency officials. Seifter shows, first, how some states allow policy disagreements between an official and the governor to constitute cause for firing (which federal case law does not allow) and, second, how many states explicitly make removal decisions unreviewable by the courts. On the first, as she briefly notes, Judge Griffith’s concurrence in the D.C. Circuit’s recent en banc decision on the constitutionality of the Consumer Financial Protection Bureau argues that the for cause standard should be, or is, lower at the federal level than federal case law might suggest. On the second, differences between the states and the federal government on agency independence produce such stark differences in outcome—specifically, in modern times, state officials often get removed for cause by the governor, but federal officials almost never get removed for cause by the president.
More broadly, Seifter’s impressive research on state administrative law should make all of us pause in our federal projects, to consider how state practices might shape our analysis. Inspired by her articles, I am currently learning about state practices for filling leadership vacancies on a temporary basis as I wrestle with “actings” and other interim leaders at the federal level. What might the states tell you about your work?
