Resolving the ALJ Quandary

Federal administrative law judges ("ALJs") understand Euripides's irony all too well. They, along with Article I judges, are the demigods of federal adjudication. As both courts and ALJs have noted, the function of ALJs closely parallels that of Article III judges. ALJs hear evidence, decide factual issues, and apply legal principles in all formal administrative adjudications under the Administrative Procedure Act ("APA").

Indeed, they outnumber Article III judges and decide more than two hundred and fifty thousand cases each year. But they lack the defining characteristics of Article III deities. Article III judges are installed under the Appointments Clause, enjoy tenure and salary protection during times of "good Behavior," and are not generally subject to reversal by the executive branch. In contrast, ALJs are hired as mere employees by executive officials, receive more limited salary protection than Article III judges, and are subject to removal within the executive branch.' Moreover, the agencies for which ALJs work-often themselves parties to the proceedings-can reverse ALJs' decisions in toto." In Euripidean parlance, ALJs are equal to Article III judges, except for the Article III part. case by oral or documentary evidence . . . and the transcript of testimony and exhibits together with the pleadings constitute the exclusive record for decision.