Stacking the deck?

Use of agency judges raises due process concerns

The Constitution says “the judicial power of the United States” rests with the federal courts, whose judges are chosen by the president and confirmed by the Senate.

Yet we have swarms of “administrative law judges,” chosen by no one the American people ever heard of, deciding cases in federal agencies. Now a man the Securities and Exchange Commission banned from working as an investment adviser is arguing that the administrative law judge who heard his case should have been appointed by the commission, not merely hired through a human-resources process — and the case may reach the Supreme Court.

What he is asking does not go far enough.

Raymond J. Lucia argues that the SEC’s administrative judges are what the Constitution calls “inferior officers.” That would mean they couldn’t just be hired. Under the Appointments Clause, they’d have to be appointed by the SEC commissioners or by the president, perhaps with the consent of the Senate. The SEC says its administrative law judges are merely employees. Courts have ruled that employees, including similar officials at other agencies, are not subject tothe Appointments Clause.

Last year, the District of Columbia Circuit Court of Appeals upheld the SEC’s system of administrative law judges, while the 10th Circuit made the opposite decision in another case. Now the D.C. Circuit is reconsidering. If it doesn’t reverse itself, the Supreme Courtmay resolve the conflict.

Administrativelaw judges may help to control the size of dockets in the federal courts. Ideally, however, they would not exist. When individuals are charged with misconduct, their cases should be heard by real federal judges, with all the due process that comes witha federal court case.

That ship, some will say, has long since sailed. But letting the same federal agencies make the rules, charge people with violating them and decide their guilt or innocence is a rejection of basic constitutional principles and values.The ship should be called to port.