The Trump administration told Congress on Thursday that it believed President Trump had the constitutional power to summarily fire administrative law judges at will, despite a statute that protects such officials from being removed without a cause like misconduct.
The move was the latest step in the administration’s unfolding assault on the basic structure of the federal government and on Congress’ power to insulate various types of executive branch officials in sensitive positions from political interference from the White House. The Trump administration disclosed its approach in a letter from Sarah M. Harris, the acting solicitor general.
Administrative law judges preside over administrative hearings in executive branch agencies. They are executive branch officials, not life-tenured members of the judicial branch, but they still perform judges’ role, including by administering oaths, taking testimony, ruling on evidentiary questions, and making factual and legal determinations.
Examples of such officials include Social Security Administration judges who handle disputes about disability and retirement benefits; National Labor Relations Board judges who resolve unfair labor practice cases; and Federal Energy Regulatory Commission judges who hear disputes about matters like electric utilities and regional grids.
To insulate the officials from political interference, Congress enacted a statute that says disciplinary action, including firings, may be taken against such judges “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the board.”
Ms. Harris’s letter to Congress also brought to wider attention that the Justice Department had said it would no longer defend the constitutionality of the law protecting administrative law judges in a little-noticed Feb. 11 filing in an appeals court case.