My esteemed colleague Kent Barnett has an op-ed in today's WSJ regarding the problematic use of in-house administrative judges.  Kent has shared some of his insights before, when a district court judge enjoined an SEC enforcement action because the presiding administrative law judge (ALJ)' s appointment violated the Constitution.  Administrative judges (AJs) outnumber ALJs and are far less independent of the federal agencies that employ them.  Here's Kent in the WSJ:

The Securities and Exchange Commission has recently come under fire for pressuring its in-house administrative-law judges to rule in its favor during agency enforcement proceedings. These are serious charges because ALJs are guaranteed independence by statute. More troubling, but largely overlooked, are the judges in federal regulatory proceedings who lack statutory independence.

They have many titles, including hearing officer, appeals officer or immigration judge. But they are often collectively referred to as administrative judges. More than 3,000 AJs—approximately double the number of administrative-law judges—work in numerous federal agencies, including the IRS and the Equal Employment Opportunity Commission.

Administrative judges preside over trial-like hearings that award or deny benefits or licenses, assess penalties for regulatory or statutory violations, or resolve private disputes. Agencies often appear in proceedings opposite the parties they regulate.

Significant statutory safeguards exist for administrative-law judges. Federal regulatory agencies appointing one must choose from three candidates whom another independent agency, after administering an exam, has deemed the most qualified. ALJs cannot receive bonuses or performance reviews from agencies. They cannot report to enforcement officials and generally cannot speak to agency officials about a case without the other party present. Agencies can discipline or remove them only if another independent agency determines that “good cause” exists for doing so.

Administrative judges are an entirely different matter. Federal agencies can appoint their own AJs directly and reward them with bonuses after agency-led performance reviews. Agency officials can discuss matters in dispute privately with them. Nearly all AJs lack statutory protection against arbitrary discipline or removal.

Go read the rest to find out what Kent recommends.  Or read this for even more of the story.

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