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Post by roymcavoy on Feb 17, 2021 8:51:13 GMT -5
DC Circuit says “with little difficulty” that ALJs are inferior officers. This case was argued on 11/15/20, and at that time, “In light of Lucia, the government agrees with petitioners that the ALJ who presided over petitioners’ cases was improperly appointed.” DC panel also noted that the petitioner did not timely raise the “unconstitutional” argument that dual protections limit POTUS removal powers before the ALJ — but that issue could be raised on remand. I think most of us would agree that the current USSC might well hold differently on the duality issue, so it will be interesting to see how this case proceeds going forward. law.justia.com/cases/federal/appellate-courts/cadc/17-1246/17-1246-2021-02-16.html |
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Post by Deleted on Feb 17, 2021 12:26:20 GMT -5
DC Circuit says “with little difficulty” that ALJs are inferior officers. This case was argued on 11/15/20, and at that time, “In light of Lucia, the government agrees with petitioners that the ALJ who presided over petitioners’ cases was improperly appointed.” DC panel also noted that the petitioner did not timely raise the “unconstitutional” argument that dual protections limit POTUS removal powers before the ALJ — but that issue could be raised on remand. I think most of us would agree that the current USSC might well hold differently on the duality issue, so it will be interesting to see how this case proceeds going forward. law.justia.com/cases/federal/appellate-courts/cadc/17-1246/17-1246-2021-02-16.htmlAgree. I think Rao's discussion of the 7521 removal protections is likely a preview of the Court will do with it.
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Post by carrickfergus on Feb 18, 2021 8:37:11 GMT -5
I also think the writing's on the wall based on the makeup of the SCOTUS.
But I don't understand why the dual-layer of protection issue can't be resolved simply by changing the removal protections afforded the MSPB, instead of ALJs. Admittedly I haven't gone through the related court decisions with a fine-toothed comb, so I may have missed the reasoning.
Each year, ALJs issue hundreds of thousands of decisions impacting the general public. It seems obvious to me that the public's expectation that these decisions aren't unduly influenced by politics should be paramount.
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Post by Ace Midnight on Feb 18, 2021 11:52:16 GMT -5
I've been thinking about this issue as well.
Just brainstorming, but what if we reconfigured the MSPB and just have it staffed by ALJs from different agencies on a rotating assignment? SSA would be the challenge, because I think you would be conflicted out of hearing cases from your own agency, but some of the smaller ALJ corps could pick up that slack, as SSA ALJs would end up doing the lion's share of work for everyone else covered by the MSPB, ALJs included.
What am I missing?
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