Tuesday 3 March 2020

Trump’s quiet power grab

The president’s administration is attempting to bring thousands of federal employees under his control, and the public is largely unaware.

Throughout the federal government are thousands of officials who do not direct courtrooms, but who are, in a sense, judges. They are federal employees who preside over trial-like disputes, hear evidence and testimony, and make decisions that can deeply shape people’s lives, such as the granting of asylum and veterans benefits. These executive-branch employees are administrative adjudicators.

The Trump administration has launched an obscure but dangerous effort to undermine this system, and to dictate both the appropriate circumstances for commencing adjudication and the rules that govern how disputes with agencies are resolved. If the Trump administration’s strategy works, it will have steered the federal bureaucracy further toward an authoritarian future in which all executive-branch policy making must bend to the whims of a single individual, the president.

Although precise data are hard to find, recent work by two leading administrative-law scholars suggests there are roughly 12,000 of these agency adjudicators of various types across the federal bureaucracy, as compared with about 870 permanently authorized federal-court judges. Though the number of matters these adjudicators handle is very hard to come by, a 2016 estimate suggests that they decide more than 750,000 cases annually, which would be about double the number of civil and criminal felony case filings in federal district court.

A plurality of administrative adjudications involve Social Security disability claims. But there is extensive variety among the several hundred agencies and programs involved in administrative adjudication. Some agencies, such as the Nuclear Regulatory Commission and the Federal Communications Commission, engage in licensing. Others, such as the Environmental Protection Agency and the Federal Trade Commission, impose penalties for legal noncompliance. Numerous adjudication schemes across multiple agencies involve disputes about government payments, the awarding and administration of government contracts and benefits, and the imposition of employee discipline. A database created by Stanford Law School and the Administrative Conference of the United States numbers these programs and the agencies involved in the hundreds.

The public is, for the most part, quite oblivious to much of this activity’s scope and importance, much less the Trump administration’s attacks on its integrity. What is at stake is not the specific resolution of individual disputes—at least not thus far—but rather the authority to dictate the general rules by which agencies decide individual cases, cases in which accuracy and impartiality are key values.

Administrative adjudication is essential to the effective implementation of federal law. For some agencies, adjudication is a necessary component of policy making, because the statutes they enforce are extremely general and sweeping; specificity gets fleshed out on a case-by-case basis. Indeed, prior to the 1960s, administrative adjudication was more prevalent than issuing general regulations as a policy-making vehicle. For example, the National Labor Relations Board  is charged with combatting “unfair labor practices.” It gives that standard meaning by bringing cases against individual employers who engage in activity the NLRB suspects is unlawful. These matters are tried before officials called administrative-law judges, or ALJs, whose decisions are reviewable first by the five members of the NLRB and then, if appealed, by a federal court. Lawyers working on subsequent labor disputes can consult the administrative orders that emanate from these adjudicative proceedings, just as they would read court decisions, to find out how the NLRB interprets the law. This is, likewise, how the Federal Trade Commission (FTC) pursues “unfair or deceptive trade practices,” and how the Securities and Exchange Commission (SEC) prosecutes a variety of offenses under the federal Securities Act.

Congress also empowers a wide variety of administrative judges to be the first-line decision makers regarding individual applicants for all sorts of government benefits. The largest group comprises the ALJs who work for the Social Security Administration. Other agencies use different categories of administrative judges to approve applications under programs as diverse as veterans benefits, patents, and refugee asylum. ALJs enjoy a number of statutory protections intended to depoliticize their service and to protect, within bounds, the independence of their judgment. Other agency adjudicators with different titles almost always enjoy less protection for their decision-making independence, based on their agencies’ governing statutes.

The Trump administration is now waging a two-pronged attack on the independence of all administrative adjudicators, including ALJs, and the agencies that employ them. The first prong involves telling agencies, via executive orders, how to exercise the discretion that Congress has given them to conduct adjudication. One such order, from October 2019, boasts the lofty title “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.” Among its provisions is a limit on when agencies may judge a private party’s past conduct to be unlawful based on a general legal standard. The executive order says that no such agency determination may be issued unless the agency has first warned the public—through a specific rule—that the general legal standard prohibits the conduct the agency would now challenge.

This may not sound like much, but in practice it would make the work of a number of federal agencies far more difficult. Consider this scenario: The FTC finds that a company has been using artificial intelligence in a novel way to ascertain which of its online customers can most effectively be tempted by a misleading, if not outright duplicitous, sales pitch. The FTC has never encountered the practice before. The FTC’s statute currently gives the agency discretion to launch an administrative proceeding against the company to determine whether the technique should be deemed a forbidden “unfair or deceptive trade practice.” If, based on the agency’s policy deliberations and a carefully assembled factual record, the FTC determines that the practice is “unfair” or “deceptive,” it could prohibit the company’s future use of that practice. What the FTC could not do would be to penalize the company for its pre-adjudication conduct—for example, by levying a fine—if no prior FTC proceeding had warned the company that it was violating federal law. The relief—as lawyers call a remedy to a legal problem—would have to be entirely forward-looking. The Supreme Court has approved this manner of administrative adjudication since 1947.

Under the Trump order, the FTC would not be allowed to proceed as I have described. It would first have to conduct a rule-making on the fairness of AI-guided online sales practices before it could go after any firm. This might be grossly inefficient and would disable the FTC from developing a nuanced factual understanding of regulated practices through individual cases. The Trump order does insist: “Nothing in this order shall be construed to impair or otherwise affect … the authority granted by law to an executive department or agency, or the head thereof.” The problem with this promise not to “impair” is that the order’s so-called fair-warning requirement, if applied to delay or prevent adjudication, would do just that. On this issue, Trump’s order either alters the discretion of administrative agencies or it is meaningless.

The second and even more aggressive prong is the Trump administration’s campaign to undermine independent agencies, which conduct a lot of the highest-profile administrative adjudications. The aim is to put an end altogether to the idea of independent officers in the executive branch. An agency is considered an “independent agency” if its head or heads may be dismissed by the president only with good cause—typically, “inefficiency, malfeasance, or neglect of office.” Conventional understanding is that presidents may fire at will any administrator who lacks such statutory protection. The Department of Justice under Trump, however, has been working hard to nudge the Supreme Court into determining either that any statutory limits on presidential at-will removal authority are categorically unconstitutional or that “inefficiency, malfeasance, or neglect of office” must be interpreted broadly enough that failure to follow any presidential directive would become “good cause” for dismissal. This would effectively end, for example, the independence of the Federal Reserve System.

The Justice Department’s first attempt at curtailing independence came in a 2018 case called Lucia v. Securities and Exchange Commission. The issue in Lucia was whether ALJs used by the SEC were “officers”—as opposed to “employees” of the United States—and thus had to be directly appointed by the SEC itself. (Under Article II of the Constitution, Congress may allow heads of agencies to appoint “inferior” officers. The president must appoint “principal officers” with Senate advice and consent. Congress has free rein for determining how “employees” may be hired.) The Court determined that the ALJs were indeed “officers” under the Constitution. It thus concluded that the SEC had acted unconstitutionally by allowing its chief administrative-law judge, working with SEC staff, to choose the commission’s ALJs. By not personally signing off on the appointments, the SEC commissioners had hoped to create the appearance of greater impartiality when their ALJs decided cases in which the SEC itself was a party. But given the Court’s holding, the SEC commissioners—the agency’s principal political appointees—would henceforth have to formally appoint the bureaucratic judges deciding the agency’s cases.

The Justice Department wanted the Court to go further, however. It argued that if the ALJs are “officers,” then the statute protecting them from at-will discharge would have to be narrowly interpreted so that they could be fired simply for failing to follow directions. The Court explicitly refused to discuss the issue. But the Solicitor General proceeded to issue a memorandum to all agency general counsels, advertising the Department’s eagerness to mount this argument in a future case.

A more direct vehicle for pushing the Court to invalidate agency independence from presidential control is a case to be argued on March 3, Seila Law LLC v. Consumer Financial Protection Bureau. (I helped write an amicus brief in this case defending the constitutionality of the CFPB’s structure.) The Justice Department’s position is that the Supreme Court’s unanimous 1935 decision upholding agency independence, Humphrey’s Executor v. United States, should be overruled. Should the Court agree, it would not only render independent judges unconstitutional within any agency, but Congress would no longer be able, through tenure protections, to limit direct presidential policy control over the principal officers who deliver each agency’s final judgments—members of the Federal Communications Commission, the Consumer Product Safety Commission, and all the similar bodies I have already mentioned. All would become removable by the president at will.

The Trump administration, in short, is challenging agencies’ ability to go after wrongdoing through administrative adjudication, and is seeking to undermine the independence of both first-line agency adjudicators and the heads of the agencies they work for. The administration appears intent on expanding this campaign. On January 30, the Office of Management and Budget (OMB) published a request for information that could be used to inform further agency-adjudication orders. Public comments are due on March 16. The questions posed by the OMB suggest the Trump administration is interested in significantly rewriting the rules by which agencies conduct their trial-type proceedings.

By making the investigation and prosecution of regulated parties more difficult, the president threatens to create a system that, through centralized control, would allow cronyism and “agency capture” to protect corporate interests ahead of the public interest. New rules shaping adjudication could also enable political officials to make it harder for individuals to get the government benefits to which they are entitled.

A group of administrative-law scholars at George Washington University wrote a friend-of-the-court brief in Lucia warning of the disaster that would follow tightening political controls over agency adjudicators. They pointed out that “Congress devoted a substantial amount of time during the 1930s and 1940s to the question of how to structure agencies that engage in adjudication of regulatory disputes.” By statute, Congress imposed procedures for ALJs that were “specifically designed to ensure that they had an appropriate degree of decisional independence from the agencies whose cases they were to hear.” Making ALJs removable at will, or simply for failing to follow directions by political superiors, would undermine the impartiality that Congress sought to guarantee.

Impartiality is anathema to Trumpism. That the Trump administration wants to upend a long-standing system for assuring both the reality and appearance of fairness in agency adjudication may be shocking. But it is not surprising. If you consider yourself on block watch for threats to democracy, take your eyes for a moment off the president’s Twitter feed and turn your attention to administrative law. Danger is lurking amid the complexity.

(Source: The Atlantic)

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