Changing norms about administrative appointments raise concerns about procedural fairness and accountability.
I have long shared with others the hope that administrative process reforms could bring greater accountability to the administrative state. But sadly, I am no longer confident that procedural reforms alone will achieve accountability.
Procedures must be implemented by presiding officials whose objectivity is often taken for granted. But appointments requirements for these officials are now manipulable by agencies in ways that can compromise accountability. As a result, reforms directed at process issues may not be sufficient to achieve accountability in adjudicative decision-making and policymaking more generally.
During discussion at a comparative administrative law workshop sponsored earlier this year by the Penn Program on Regulation, Michael Herz made a comment that captures my concerns. Using voting procedures as an example, he conjectured that there was a time when political opponents could agree that setting up a fair system was their goal, since it was assumed that all sides would operate within it. The same assumptions, Herz said, apply to administrative procedures: “Those who want very few regulations and those who want lots of regulations might still be able to agree on the process for promulgating regulations.” Although that may be an overly optimistic view today, it is really what the Administrative Procedure Act’s (APA) enactment represented—both sides came “to rest” on a procedural formulation.
It is no secret that power over process can be as result-determinative as power over substance. The late U.S. Representative John Dingell’s infamous dictum—“If I let you write the substance and you let me write the procedure, I’ll screw you every time”—bears remembering. But the administrative law community does not approve of using process as a weapon. It accepts that the “process wars” were settled long ago.
Well, this may no longer be the case. In the United States, notions of executive power, highlighted during the Trump years, have unsettled the appointments processes for administrative law judges (ALJs) and challenged their adjudicative powers. Deference to agency policymaking is increasingly being challenged, with some observers questioning ethical constraints on administrative officials and the value of decisional independence.
In several European countries, Hungary in particular, executive removal or marginalizing of constitutionally appointed judges raises questions of independence and transparency that override process reforms. Viktor Orban’s authoritarian regime, by weakening internal checks on power, has created what Kim Scheppele and others have called a “Frankenstate.”
Judges and administrators subject to removal or reassignment can hardly be expected to decide objectively, let alone courageously. For those who question the relevance of the Hungary experience to the United States, I recommend watching the hearings of the January 6 Committee. And I might remind them that the Conservative Political Action Conference has gone to Hungary to embrace Orban, who they see as an ideal leader. A perfect autocrat for our times.
Consider also that Trump’s allies are planning to revive his executive order that creates a new Schedule F, which allows removal of policy-level civil servants without cause. They are apparently lining up a group of “America First” loyalists to replace uncooperative officials in the next Trump administration. And even if Trump is not the presidential nominee in 2024, this playbook will be available to any Republican who succeeds him.
So, we have bigger problems than expanding APA procedures. Is there a way out of this fascination with autocratic behavior? We need to unify around some “neutral principles” in the administrative law setting.
With respect to adjudication, due process demands fair procedures as well as independent deciders. It may be that, for some critics, ALJs can never meet this standard. But, for the rest of us, an appointment process free of politics is essential. This means that, if agencies are given the power to appoint ALJs without the constraints previously imposed by the Office of Personnel Management’s rating process, the agencies’ process must be objective and transparent. Judges should be chosen based on relevant experience and appropriate temperament, not political affiliation. In this sense, ALJs can be even more “neutral” than Article III judges.
In rulemaking and other areas of agency policymaking, independence is also important, even if the due process demands are different from those placed upon ALJs. In these policy arenas, independence based on civil service protections and ethics requirements are essential, including whistleblower protections.
As the Trump–Ukraine situation showed us, public servants such as former Ambassador Marie Yovanovitch and Colonel Alexander Vindman spoke truth to power at great personal risk and career jeopardy. The Dissent Channel at the U.S. Department of State, which permits ambassadors to voice policy concerns without fear of retribution, has never been more essential to good policymaking. Arguments to end civil service protections generally, in hopes of making government more efficient, should be resisted. More is at stake than government efficiency, as desirable as that value may be. The best people must be chosen to serve in government and their expertise and objectivity should be encouraged and protected.
In light of these challenges, what is the future of the much-embattled independent agency? The 1935 case Humphrey’s Executor v. United States, which permits Congress to grant independent agency commissioners protections such as for-cause removal, fixed terms, and politically balanced appointments, has long been in the crosshairs of unitary executive power advocates.
Is independence also a value worth preserving in this context? To the extent that independent agencies, such as the U.S. Federal Trade Commission (FTC), engage in adjudication, their need for independence might be seen as the same as it is for ALJs. And since these agencies also engage in rulemaking and policymaking, removal protections similar to those that apply to the civil service might also be justified. The party balance requirement for commissioners—two out of five FTC commissioners must be from the non-administration’s party—is also a safeguard against partisan policymaking.
In the present environment, it might be appealing to support still greater independence in agency appointments, even at the commissioner level. But the interests are more complicated. There is already a check on the President’s power through the Senate advise-and-consent process. To limit further the executive through for-cause removal and balanced political representation hamstrings the President and makes Humphrey’s an uneasy precedent. It is ultimately the President’s policy choices that matter, not those of high appointees. This all makes sense in normal times, but that begs a bigger question.
The state of Wisconsin has just shown how abnormal these times are. In Wisconsin v. Prehn, the defendant, a member of an independent agency, refused to leave office after his term expired, and the Republican state senate would not confirm his successor. Governor Tony Evers sought a declaration that Prehn was obligated to leave his post. But since Prehn had for-cause removal protections, a 4–3 majority of the state supreme court held that he could stay in office. The political gamesmanship here is astounding. Given the political impasse, Prehn might stay in office for years unless he can be removed for cause. Although this outcome might not readily occur at the federal level, where holdover terms are often limited by statute, who knows what would happen if Trump loyalists were waiting in line. Winning by tricks and obfuscation, rather than shared commitments to neutral processes, is not how governance should take place.
Wisconsin was once a progressive state with a proud history in the New Deal period. Today it is a leader among regressive states. It is becoming like Hungary. Due to gerrymandering by the Republican legislature, the Democrats win over 50 percent of the popular vote but claim only a minority of legislative seats. This means that an entrenched Republican legislature can frustrate the policymaking of a Democratic governor, as it has done by denying him cabinet appointments. Governor Evers won the election. He deserves his appointments.
But it does not stop there. The prior Republican governor in Wisconsin managed to defeat the long tradition of civil service in the state by obtaining legislation that created a largely at-will appointment system for state employees. Perversely, for-cause removal is now limited to cabinet officials like Prehn, who should not have it in the first place. There are now numerous other states that have gone to “at will” public employment and, recently, a group of conservative lawmakers introduced a bill to that effect in Congress.
So, Wisconsin sits at the head of this new authoritarian movement in the United States. The orderly transfer of power and political fair play have become contested concepts. It used to be that when one party won, the other party largely fell into line and confirmed the winner’s policymakers, except in rare instances. Now nothing is legitimate, so everything is challenged. That is why we should all be uneasy about the appointments process and its effect on the implementation of procedural rights.
Now, I concede that I may be overreacting. Perhaps I am guilty of “tyrannophobia.” I hope so, as I surely want to be wrong.
This essay is part of a six-part series entitled, Administrative Law in Comparative Perspective.
