Trump DoJ: Restrictions On Removal Of Admin Law Judges Are Unconstitutional

The Trump 2.0 administration is moving ahead with plans to take control of its own employees—meaning, the Executive Branch. According to the Constitution, the President is the Chief Executive, so all Executive Branch departments, agencies, and employees are subordinate to him. The President is the Chief Executive, and he decides on personnel matters regarding who will help him execute the laws. Over the decades—mostly since the New Deal—Congress set up “independent” agencies, meaning, independent of the President. This was done by writing into the legislation provisions that purport to prevent the Chief Executive, the POTUS, from removing certain employees of these agencies. Among these employees are “judges”—not judges as defined in Article III of the US Constitution, but simply employees of the agencies who act like judges in deciding cases that come before the agencies and interpreting relevant statutes and, especially, agency regulations. Of course, these “judges” wield considerable power, since the agencies they work for are able to levy fines and take other punitive steps against the citizenry.

The Roberts Court has been incrementally reining in this system over a period of years, a system that had, in effect, set up a 4th Branch of government that is unrecognized in the US Constitution. The aim of the Roberts Court has been to restore the order of government that was set out in the Constitution. However, the SCOTUS is required to wait for cases to arrive on its doorstep before it can address these matters, and conservative jurisprudence typically requires that cases be decided narrowly. Furthermore, most recent presidents have refrained from following up on these SCOTUS decisions. Dem presidents have so refrained because they recognized that the SCOTUS decisions would, if carried out, dismantle much of the “New Deal” Third American Republic’s legal basis. GOPer presidents have simply preferred not to get into political conflicts with Congress—go along to get along.

The Trump DoJ has now held that all that charade is unconstitutional and that the SCOTUS precedent will be insisted upon. What this means is house cleaning at Admin Agencies, removing “judges” who gum up the works by interpreting laws differently than the interpretations of the President or DoJ. If I understand this correctly, the SCOTUS decision addressed only Congressional provisions that prevented the firing of the executives at the head of some of these agencies. The Trump DoJ is using its power to interpret the constitutionality of laws by extending the logic to the case of admin law “judges”, thus speeding up the reform process of dismantling the Admin State. Of course there may be legal challenges, however the existence of SCOTUS precedent may make those challenges more difficult. Trump 2.0 is perfectly happy to challenge the establishment.

Trump DOJ Declares Multi-Layered Protections for Administrative Law Judges Unconstitutional, Dismantling Longstanding Shield for Unelected Bureaucrats
Gateway Pundit, ^ | Feb. 21, 2025 | Jim Hᴏft

The Department of Justice under President Trump has determined that the multiple layers of removal restrictions shielding administrative law judges (ALJs) are unconstitutional.

The DOJ has concluded that current laws make it too difficult for the government to remove ALJs from their positions. These laws require multiple steps and layers of approval before an ALJ can be fired, which limits the President’s power.

ALJs in the United States are supposed to be “impartial officials” who preside over administrative hearings within federal agencies. They operate within the executive branch, not the judicial branch.

A letter from Acting Solicitor General Sarah Harris to Senator Chuck Grassley (R-IA) outlined the DOJ’s stance, explaining that restrictions preventing the removal of ALJs under 5 U.S.C. 1202(d) and 7521(a) are unconstitutional under Article II of the U.S. Constitution.

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The DOJ’s position aligns with the Supreme Court’s 2010 Free Enterprise Fund v. Public Company Accounting Oversight Bd. decision, which struck down similar “multilayer protection from removal” for executive officers. The Court ruled that such barriers were an unconstitutional infringement on the president’s authority to oversee executive officers.

In the DOJ letter, Harris referenced this ruling, emphasizing that removal restrictions preventing ALJs from being held accountable create an unconstitutional chain of protection, limiting the president’s ability to ensure executive officials serve the public interest.

The DOJ has also announced it will no longer defend these removal restrictions in court, a major policy shift.

The letter reads:

Pursuant to 28 U.S.C. 530D, I am writing to advise you that the Department of Justice has concluded that the multiple layers of removal restrictions for administrative law judges (ALJs) in 5 U.S.C. 1202(d) and 7521(a) violate the Constitution, that the Department will no longer defend them in court, and that the Department has taken that position in ongoing litigation. See 2/11/25 Letter, Axalta Coating Systems LLC v. FAA, No. 23-2376 (3d Cir.).

In Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), the Supreme Court determined that granting “multilayer protection from removal” to executive officers “is contrary to Article Il’s vesting of the executive power in the President.” Id. at 484.

The President may not “be restricted in his ability to remove a principal [executive] officer, who is in turn restricted in his ability to remove an inferior [executive] officer.” Ibid.

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Consistent with the Supreme Court’s decision in Free Enterprise Fund, the Department has determined that those statutory provisions violate Article II by restricting the President’s ability to remove principal executive officers, who are in turn restricted in their ability to remove inferior executive officers.