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48 Admin. & Reg. L. News 8 (2022-2023)
Article II Vibes

handle is hein.journals/admreln48 and id is 10 raw text is: Article II Vibes Christine Kexel Chabot Recent challenges to tenure protec- tions for Administrative Law Judges (ALJs) at the Federal Trade Commission (FTC) and Securi- ties Exchange Commission (SEC) f on a fundamental constitu- tional concern: Article II's requirements of accountability within the executive branch. Two pending Supreme Court challenges-Axon Enter- prise, Inc. v. FTC and SEC v. Cochran-address thresh- old jurisdictional questions of when and where parties subject to proceedings before ALJs may raise their constitutional objections. Both challengers have asked the Court to short circuit ongoing ALJ proceedings so that they may seek immediate relief in district court for their alleged constitutional injury. E.g., Brief for Petitioner at 4-6, Axon Enterprise, Inc. v. FTC, No. 21-86 (2022). But it's far from clear that tenure protections for ALJs who make initial adjudicative determinations violate the Constitution. The Court seems to have recognized as much by granting certiorari to review Axon's jurisdictional question and declining to review the merits of Axon's constitu- tional challenges. Axon Enterprise, Inc. v. FTC, 142 S. Ct. 895 (2022). The challengers' constitutional objec- tions implicate serious and ongoing debates about the constitutional text, its original meaning, historical practice, and precedent. For example, my recent Article recovers scores of largely overlooked Founding-era statutes in which early Congresses delegated significant discretion over executive adjudication and enforcement to non-removable judges and private parties. Christine Kexel Chabot, Interring the Unitary Executive, 98 NOTRE DAME L. REV. 129 (2022). The challengers fail to acknowledge, much less address, obstacles posed by the historical record or other significant textual and precedential shortcomings of their constitutional claims. These omissions leave the sinking suspicion ocus that the challengers' claims rest on anti- administrativist, Article II vibes rather than a concrete affront to Article IL. Axon Enterprise (Axon) and Michelle Cochran (Cochran) challenge well-established federal regulatory structures. Tenure-protected ALJs have CHRISTINE long made initial adjudicative KEXEL CHABOT determinations subject to the review and approval of the FTC, SEC, and other federal agency heads. Nevertheless, Axon and Cochran argue that this regulatory design violates Article II-or more precisely, the unitary executive theory of Article II. Unitary executive theory posits illimitable presidential power to remove (and thus control) subordinate officers within the executive branch. Axon and Cochran rely on Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), to extend unitary removal power well down the chain of command-to ALJs who serve as in-house judges and make initial adju- dicatory decisions for agencies. Despite the limited scope of ALJs' authority, the challengers complain that ALJs are doubly (and therefore unconstitution- ally) insulated from presidential control: ALJs may be removed by the Merit Systems Protection Board only for good cause, and members of the Merit Systems Protection Board may themselves be removed by the President only for 'inefficiency, neglect of duty, or malfeasance in office.' Brief for Petitioner Axon at 9 (internal citations omitted). For reasons explained below, however, these tenure protections are consistent with the constitutional text, historical practice, and Supreme Court precedent. Text. Problems with the challengers' unitary arguments start with the consti- tutional text. Nowhere does Article II assign the President an express power to remove subordinate officers. The original understanding of Article II was so unclear that the First Congress spent months debating whether or not the Constitution granted the President power to remove subordinates unilater- ally and without permission from Congress. See JONATHAN GIENAPP, THE SECOND CREATION: FIXING THE AMERICAN CONSTITUTION IN THE FOUNDING ERA 125-37 (2018). Plenary removal power may also contravene Article II's basic textual grant of executive power, or power to execute the law, as well as the President's duty to take care that the law be faithfully executed. U.S. CoNST. Art. II §§ 1, 3. In the case of ALJs, for example, unfettered removal power might allow a president to fire an ALJ who ruled against one of the president's friends (or in favor of a president's enemy). While Congress would retain power to impeach the president for this abusive action and prevent a president from naming a replacement for the ALJ, see Aaron L. Nielson & Christopher J. Walker, Congress's Anti-RemovalPower, 76 VAND. L. REV. (forthcoming), the threat of future removal would leave a sword of Damocles hanging over ALJs assigned to the same or similar matters in the future. Such raw political influence could interfere with ALJs' legal obligations to decide adjudicative matters based on relevant evidence and governing law. History. Unitary understandings of presidential removal power suffer from selective readings of the historical record. Unitary scholars interpret the First Congress's debate over presidential removal power, and the resulting Decision of 1789, as clear originalist evidence that the First Congress recognized an unfettered Distinguished Professor in Residence & Interim Director, Institute for Consumer Antitrust Studies, Loyola University Chicago School of Law. ADMINISTRATIVE & REGULATORY LAW NEWS 8 VOL 48, NO 1 8 ADMINISTRATIVE & REGULATORY LAW NEWS VOL 48, NO 1