To GBD: ‘Administrative Law Judges’?

[Note: ‘GBD’ is how my late friend Guy Darst signed his notes. I’m continuing to send him stuff, as I explained in ‘Send to Guy’.]


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Back on 25Jul18, Paul Mirengoff, in the PowerLine Blog, wrote about ‘Administrative Law Judges’, a title I had heard, but about which I knew nothing. He writes, in part:


On July 10 of this year, the White House issued an executive order giving agency heads the authority to select their own administrative law judges (ALJs).

The Washington Post editorial board expresses concern that, under this executive order, political appointees will pick like-minded ALJs to better serve their agendas.

The order threatens the independence and professionalism of those charged with overseeing thousands of administrative decisions a year, the Post’s editors complain. They add that “there is value in having a cohort of qualified, impartial arbitrators working on administrative disputes.”

I agree, in theory. If ALJs truly were politically neutral, any order disturbed that happy status quo would be objectionable.

The problem is that ALJs often are not politically neutral. The Post’s claim that that this “used to be a proudly nonpartisan position” rings hollow.

Having lived almost all of my life in the Washington, D.C. area, I’ve known more than a few administrative law judges. Nearly all of them are/were liberal Democrats. That’s hardly surprising. The federal bureaucracy that produces ALJs is almost entirely liberal Democrat. . .

So ALJs preside over courts that decide disputes occasioned by “thousands of administrative decisions,” made we must presume by dozens—hundreds? thousands?—of agencies, departments, offices, programs operating under the aegis of our wonderful Federal government.

The question Paul addresses is: Who should appoint them? It is important because these judges are apparently responsible for interpreting how the multitude of rules, regulations, dicta, etc. promulgated by such entities are to be implemented. The judges have been selected, says the Post, from lists prepared by the Office of Personnel Management, i.e. by an arm of the bureaucracy itself. Since the Trump administration has promised to reduce the burden of excessive government regulation on American life, the Executive Order allowing politically-appointed agency heads to appoint like-minded judges would seem to make sense. And, as Paul says,

It’s also worth noting that federal district court judges are appointed by politicians — the U.S. President, often in consultation with members of Congress from the state in question. ALJs are the administrative equivalent of federal district court judges. . .

As it turns out, these ALJs are not really members of the federal judiciary at all, so are not subject to confirmation by Congress or approval by higher judicial authority. They are just creatures of the sprawling executive branch. But isn’t this the real issue? The question we should be asking is: Why do we have Administrative Law Judges?

The answer is because we have extra-constitutional bureaucracies creating regulations that have the de facto effect of law. Such regulations are in large part the product of the ‘progressive’ mindset that for a century has held the expertise of government authorities higher than the common sense experience of ordinary citizens. How likely is it that an ALJ will defy the power of a bureaucratic authority upon the mere citizens under its crushing wheels? Even if he is conservatively inclined, will he not inevitably end up siding with the institutions that provide his bread and butter?

Maybe the President’s Executive Order will help stiffen the spines of conservative ALJ appointees, but these are thin reeds at best. The problem is administrative law to begin with. How do we get rid of it? How does a tripartite Constitution deal with an Executive Branch so swollen as to make the Federal Government unrecognizable to its creators, were they able to view it? /LEJ

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