Justice Department Says It Will Not Defend Law Protecting Administrative Law Judges From Removal

WASHINGTON — The Justice Department has told Congress that it believes a federal restriction on removing administrative law judges is unconstitutional and will not defend the restriction in court.

The House entered the notification from the Justice Department’s solicitor general as Executive Communication 4964 on Oct. 26 and referred it to the House Judiciary Committee. The communication identifies 5 U.S.C. 7521 as the provision at issue and says the department made the notification under 28 U.S.C. 530D(a)(1) 1.

Administrative law judges, often called ALJs, preside over certain hearings and other case proceedings within federal agencies. They are part of the executive branch, rather than the federal court system.

The dispute concerns the Constitution’s separation of powers, or the division of government authority among the branches. Supporters of broader presidential authority argue that the president must be able to supervise executive-branch officials who carry out federal law. In that view, limits on removing those officials can reduce political accountability.

Defenders of removal protections make a different institutional argument. They say adjudicators need some independence from political officials to decide cases based on the law and the record before them. They view that independence as an aid to impartial hearings and due process.

The Justice Department’s notice states the department’s position in court cases; it is not a court decision on the constitutionality of the provision. The House referral places the communication before the Judiciary Committee, but the House entry does not announce further committee action or a court ruling.