Sharing administrative judges is prevalent, and it undermines the Constitution – Pacific Legal Foundation

Report on Interagency Administrative Law Judge Loaning and its Implications for Sustainable Development Goal 16

Introduction and Background

A recent research report from the Pacific Legal Foundation, authored by Stone Washington, investigates the practice of interagency borrowing of Administrative Law Judges (ALJs) within the United States federal government. This system, where ALJs employed by one agency adjudicate cases for another, has operated with limited transparency. The report provides the first empirical analysis of this practice, highlighting significant challenges to the rule of law and the development of strong, accountable institutions, a core tenet of the Sustainable Development Goals (SDGs).

Key Research Findings

The study analyzed a sample of 960 ALJs across 421 federal agencies. The primary findings reveal a widespread practice of interagency movement:

• Prevalence of Borrowing: 267 ALJs, representing 28% of the sample, adjudicated cases for agencies other than their primary employer.
• Key Agencies Involved: The agencies with the highest number of transitory ALJs include the Social Security Administration (SSA), the Department of Health and Human Services (HHS), the Department of Labor (DOL), and the National Labor Relations Board (NLRB).
• Central Role of the SSA: The Social Security Administration is a significant participant in this system, with 213 of the 267 mobile ALJs (80%) having worked for the agency at some point.

Analysis of Implications for Sustainable Development Goals (SDGs)

SDG 16: Peace, Justice and Strong Institutions

The practice of borrowing ALJs directly impacts the targets of SDG 16, which aims to build effective, accountable, and inclusive institutions at all levels. The report’s findings suggest the current system undermines this goal in several critical areas.

• Target 16.3 – Promote the rule of law and ensure equal access to justice: The system raises questions about due process and impartiality. When ALJs are not directly accountable to the agency whose cases they hear, it can compromise the principles of a fair and predictable legal framework, potentially impeding equal access to justice for individuals and entities in disputes with federal agencies.
• Target 16.6 – Develop effective, accountable and transparent institutions: The interagency loaning of ALJs creates a significant accountability deficit. According to constitutional interpretations, ALJs are executive officers who must remain in a clear chain of command under the President. Borrowing breaks this chain, creating ambiguity regarding oversight and removal authority. This lack of clear accountability runs counter to the development of effective and transparent institutions.

SDG 10: Reduced Inequalities

The integrity of judicial and quasi-judicial systems is fundamental to achieving SDG 10, particularly in ensuring equal opportunity and outcomes.

• Target 10.3 – Ensure equal opportunity and reduce inequalities of outcome: An administrative justice system with unclear lines of accountability and potential conflicts of interest can lead to unequal outcomes. When defendants face a system where the adjudicator’s oversight is ambiguous, it can create a power imbalance that disproportionately affects those with fewer resources, thereby failing to ensure equal opportunity in legal proceedings.

Analysis of Administrative Justifications

A primary argument in favor of using ALJs is their specialized expertise in complex regulatory matters. However, the research findings challenge the validity of this justification within the context of interagency borrowing.

1. The Argument for Expertise: Proponents claim that ALJs possess technocratic expertise specific to their agency’s regulatory field, making them better equipped than generalist judges to adjudicate complex disputes.
2. Contradiction from Research: The finding that nearly 30% of ALJs move between agencies with varied regulatory focuses undermines the expertise argument. An ALJ moving from social security law to labor law, for example, cannot be presumed to maintain a high level of specialized expertise in both fields. This practice weakens the foundational justification for the administrative adjudication system.

Conclusion: A Challenge to Institutional Integrity

The research on interagency ALJ borrowing reveals a systemic practice that poses significant challenges to constitutional principles of accountability and the rule of law. By creating an accountability vacuum and undermining the core justification of specialized expertise, this system conflicts with the objectives of Sustainable Development Goal 16 for building just, transparent, and accountable institutions. Further scrutiny is required to ensure that the administrative state’s quasi-judicial functions align with fundamental principles of due process and support the global commitment to strong, effective governance.

Analysis of the Article in Relation to Sustainable Development Goals

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 16: Peace, Justice and Strong Institutions

  This is the primary SDG relevant to the article. The text focuses entirely on the structure, accountability, and legality of a quasi-judicial system within the United States government. It critiques the system of Administrative Law Judges (ALJs) for undermining the rule of law, due process, and the separation of powers. The article’s core theme is the need for effective, accountable, and transparent institutions, which is the central aim of SDG 16.

2. What specific targets under those SDGs can be identified based on the article’s content?

1. Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.

   • The article directly engages with this target by analyzing a system that it claims “circumvents the rule of law.” It argues that the practice of borrowing ALJs creates a “constitutional rat’s nest” and makes a “mockery of the Constitution’s separation of powers and due process guarantees.” This directly questions the integrity of the rule of law within the administrative state.

2. Target 16.6: Develop effective, accountable and transparent institutions at all levels.

   • Accountability: The article’s central argument is that interagency borrowing of ALJs “severs the accountability inherent in Article II.” It raises critical questions like “Who is the ALJ accountable to?” and “Who can remove the borrowed ALJ from office?” highlighting a broken chain of command from the judge to the executive branch.
   • Transparency: The article begins by stating, “Very little is known about how this works or how prevalent it is.” The research report it discusses is described as shedding “much-needed light on this system,” indicating that the practice lacks transparency, a key component of this target.

3. Target 16.7: Ensure responsive, inclusive, participatory and representative decision-making at all levels.

   • The article argues that the ALJ system, particularly with borrowed judges, runs “afoul of the Constitution.” By operating in a “legal gray area” without clear lines of accountability, the decision-making process within these tribunals cannot be considered fully responsive or representative of the constitutional framework it is meant to uphold. The critique of due process implies that the decision-making process is not fair or just for the defendants involved.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

1. Implied Indicator for Target 16.6: Proportion of adjudicators operating outside a clear and direct line of accountability.

   • The article provides specific data that can serve as an indicator for the lack of institutional accountability and transparency. The research found that 28% of sampled ALJs (267 out of 960) “moved from agency to agency to adjudicate cases.” This percentage is a direct measure of the prevalence of the practice that the article claims undermines accountability. A reduction in this percentage would indicate progress toward more stable and accountable institutions.

2. Implied Indicator for Target 16.3: Existence of judicial or quasi-judicial procedures that do not adhere to constitutional principles of separation of powers.

   • While not a quantitative metric, the article identifies the system of “interagency borrowing of ALJs” as a qualitative indicator of a weakness in the rule of law. The number of agencies participating in this practice, such as the “Social Security Administration, the Department of Health and Human Services, the Department of Labor, the National Labor Relations Board, and the Internal Revenue Service,” could be tracked as a proxy measure of the scale of this institutional challenge to the rule of law.

Summary Table of Findings

Source: pacificlegal.org