The Volokh Conspiracy
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Eleventh Circuit Upholds For-Cause Removal for Administrative Law Judges
Will the en banc court agree? Will the Supreme Court?
Yesterday, in Walmart v. Chief Administrative Law Judge, a unanimous panel of the U.S. Court of Appeals rejected Walmart's challenge to constitutionality protecting Administrative Law Judges in executive branch agencies from removal without cause.
In an extensive and quite thorough opinion by Judge Hull, joined by Judges Jordan and Jill Pryor, the court concluded that the duties and authority exercised by ALJs are sufficiently constrained that limiting ALJ removal does not entrench upon executive power under Article II or otherwise prevent the President from fulfilling his obligation to "take care" that the laws are faithfully executed."
Here is the key portion of the opinion summarizing the court's analysis:
No doubt, the "general rule" is that under Article II the President has the "unrestricted" power to remove executive officers. See Seila Law, 591 U.S. at 215. To date, the Supreme Court has enumerated only two narrow exceptions to this Article II rule: (1) "one for multimember expert agencies that do not wield substantial executive power," id. at 218; see also Humphrey's Ex'r, 295 U.S. at 631-32, and (2) "one for inferior officers with limited duties and no policymaking or administrative authority," Seila Law, 591 U.S. at 218; see also Morrison, 487 U.S. at 691.
We are not concerned with the first exception. In the district court and on appeal, neither party previously asserted that ALJs are members of multimember expert agencies under Humphrey's Executor or single directors of independent agencies. See Seila Law, 591 U.S. at 213 (single Director of CFPB); Collins, 594 U.S. at 251 (single Director of FHFA).
As to the second exception, the parties still agree that the Department's ALJs are inferior officers properly appointed by the Attorney General. So the constitutional question becomes whether they have "limited duties and no policymaking or administrative authority" as required by the second exception. Seila Law, 591 U.S. at 218; Morrison, 487 U.S. at 691; see also Wilcox, 145 S. Ct. at 1415 (acknowledging "narrow exceptions" to the President's Article II removal power).
Under the second exception, the pivotal Article II inquiry remains whether the APA's § 7521(a) removal restriction unconstitutionally interferes with the President's necessary power to take care that the laws are faithfully executed. See Myers, 272 U.S. at 164; Morrison, 487 U.S. at 689-90. In other words, does the ultimate exercise of executive power remain within the purview of the President or those directly accountable to the President? See Morrison, 487 U.S. at 689-90.
After thorough consideration, and applying the Supreme Court's governing analysis and largely the same factors considered by other circuits, we conclude the APA's § 7521(a) removal restriction is constitutional . . .
The court adds:
In holding § 7521(a) constitutional, we respect the Constitution's carefully calibrated separation of powers. Even though the Constitution is silent about removal of executive branch officers, the Supreme Court has instructed that Article II's Take Care Clause and Appointments Clause grant the President the broad power to remove executive branch officers. But importantly here, the Constitution in Article II also explicitly grants Congress a say in how inferior officers, including the Department's ALJs, are appointed. The constitutional authority of Congress to vest the appointment of inferior officers implies authority to limit and regulate the removal of those inferior officers so appointed. Striking down § 7521(a)'s straightforward "good cause" removal restriction on inferior officers with such limited duties as ALJs would upset the Constitution's balance of governmental power.
I would expect that Walmart will seek review of this ruling, perhaps initially with a petition for rehearing en banc, then followed by a petition for certiorari. This is a particularly liberal panel for the Eleventh Circuit, so an en banc petition would make some sense. On the other hand, Judge Hull's opinion is quite thorough, and other judges on the circuit might think that if any court is going to take the next step with regard to limitations on removal, it should be the Court at One First Street.
