Judges and the administrative state (deep state)

H. Alexander Manuel

Judges and the administrative state
American Bar Association Online Journal
By H. Alexander Manuel
Posted May 9, 2018, 8:30 am CDT

The term "administrative state," or the more pejorative term "deep state" are trending concepts that conjure up images of conspiracies and government bureaucrats run amok.

The reality of course is that the vast majority of career government professionals are committed to putting the interests of the American public first in the performance of their duties. Toward this end, the government employs administrative law judges to administer due process and to provide additional oversight within the agencies themselves.

There are many judges and types of judges in the administrative state. Most of us have an idea what an administrative law judge is and what she does. But do you know how that position differs from the position of administrative judge, immigration judge, or hearing officer? If one of your answers is that their jurisdictions tend to be limited to specialized fields of law within their agencies, that would be only partly true. While it is certainly true with respect to immigration judges, many administrative law judges handle cases from agencies other than the agency that employs them. This is accomplished by memorandum of understanding, or by "borrowing" from a list of ALJs maintained by the U.S. Office of Personnel Management, which assists agencies that experience case backlogs or that do not maintain ALJs on their staff.

Another major characteristic of the federal administrative judiciary is that their positions are created pursuant to Article I of the U.S. Constitution. This delineates them from their Article III brethren who are more familiar to lawyers and the general public at both the federal and state levels. But the Article I distinction is a critical one. Under Article I, Congress has created the U.S. territorial courts, the U.S. Tax Court, the U.S. Court of Federal Claims, the U.S. Court of Appeals for the Armed Forces, the U.S. Court of Appeals for Veterans Claims, the Patent Trial and Appeal Board and other administrative courts and tribunals. The U.S. Bankruptcy Court was created pursuant to Article I in 1978, but operates under the auspices of the U.S. District Courts under Article III.

As cases involving technical and specialized areas of law have grown, Congress has recognized the public’s need to reshape our court system, and even to create entirely new court systems.

The federal administrative judiciary was created out of public necessity. Article III judges will acknowledge that it is simply not possible for their courts to handle the plethora of litigation and appeals generated by administrative agencies. Of the hundreds of federal subagencies today, just three of those subagencies—the Social Security Administration, Office of Medicare Hearings and Appeals, and the U.S. Immigration Court—are reported to maintain a backlog of approximately 3 million cases. There are also thousands of other pending cases. Not only would these numbers overwhelm the Article III courts, they pose extraordinary challenges for administrative tribunals as well.

Apart from the issue of garnering sufficient resources, administrative courts face a more compelling hurdle—fighting the battle for judicial independence. Many Article I judges are not afforded judicial tenure and feel pressured to decide cases in favor of their agencies. Article III judges render their decisions freely and fairly, without regard to whether they will lose their jobs or be denied a personnel benefit because they decided a case for or against a particular party. This is the hallmark of due process as envisioned under the Constitution, and this is what the American public has come to expect when they appear before a judge. In the absence of fidelity to due process, there can be no legitimacy to the proceeding, in the eyes of the public. See this report from the Administrative Conference of the United States.

More essays on fair courts
About the series

Judicial Independence in the U.S. federal courts
Judicial Learning Center - Judicial Independence

In large measure, this is what motivated the Congress to pass the Administrative Procedure Act in 1946. Recognizing the critical importance of judicial tenure, both in substance and appearance, Congress provided special protections for administrative law judges, even as it afforded due deference to the constitutional powers of executive agencies to render final agency decisions. In other words, although ALJs must remain ultimately accountable to the president (as all agency officers are) in the APA, Congress recognized the importance of creating a legitimate forum for conducting fair and impartial hearings in administrative proceedings.

The U.S. Supreme Court will soon decide Lucia, et al., v. SEC, which was recently argued before the court. In Lucia, the very nature of the ALJ position is in dispute. Under Article II, all inferior officers of administrative agencies must be held accountable to the executive or the president. Unlike most "inferior officers" of federal agencies, ALJs cannot be removed from their positions without a showing of "good cause" in a proceeding before an ALJ with the U.S. Merit Systems Protection Board. On rare occasions, ALJs have been removed through this process, but it is a difficult standard to meet, as it should be. Is it possible to administer due process without a decision-maker who enjoys adequate judicial tenure? As the Supreme Court and the Congress contemplate the tangle of issues embedded in that question, we may do well to look back at history and the examples provided by our state administrative tribunals.

Most states employ a "state central panel" system of administrative adjudication where the judges are not embedded in individual agencies but are instead housed in a central panel of judges who hear the cases from all or most of the various state agencies. Some argue that these administrative judges lack the expertise to hear cases ranging from medical licensing, to special education, to environmental protection, etc. But this argument loses its steam when you consider that Article III judges hear the same range of cases, and more, every day. In fact, the experience of the state central panel system is that it is highly cost-effective, and better serves the public interest, according to recent studies.

This model could be just as beneficial at the federal level, as attorneys, dating back to at least 1941, have observed. A centralized panel of federal administrative judges with adequate judicial tenure could generate substantial cost savings compared to the cost of operating separate judicial offices in the various federal agencies and subagencies. It would also allow judges to develop and cross-train judges in various legal specialties housed under one roof. This would lead to better decision-making, and career options for judges. Most importantly, it would enhance judicial and decisional independence in a way that would strengthen the public’s perception of having been afforded a fair and impartial hearing in administrative proceedings. Read more

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H. Alexander Manuel currently serves as an officer with the National Conference of the Administrative Law Judiciary, Judicial Division, American Bar Association. He has served for 16 years at both the federal and state levels, as an administrative judge with the U.S. Department of Housing and Urban Development and the Commonwealth of Virginia, respectively. He is a former partner with Pillsbury, Madison & Sutro of Washington, D.C., and Meserve, Mumper & Hughes of Los Angeles, specializing in bank regulatory matters, and representation of the Federal Deposit Insurance Corp. He is also a veteran of the U.S. Army and U.S. Air Force.

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The Deep State by Mike Lofgren (Author's website)
The Fall of the Constitution and the Rise of a Shadow Government
An excerpt from the introduction:

Anyone who has spent time on Capitol Hill will occasionally get the feeling when watching debates in the House or Senate chambers that he or she is seeing a kind of marionette theater, with members of Congress reading carefully vetted talking points about prefabricated issues. This impression was particularly strong both in the run-up to the Iraq war and later, during the mock deliberations over funding that ongoing debacle. While the public is now aware of the disproportionate influence of powerful corporations over Washington, best exemplified by the judicial travesty known as the Citizens United decision, few fully appreciate that the United States has in the last several decades gradually undergone a process first identified by Aristotle and later championed by Machiavelli that the journalist Lawrence Peter Garrett described in the 1930s as a "revolution within the form." Our venerable institutions of government have outwardly remained the same, but they have grown more and more resistant to the popular will as they have become hardwired into a corporate and private influence network with almost unlimited cash to enforce its will. Read more

The Deep State by Mike Lofgren
Penguin Random House, publisher
The Fall of the Constitution and the Rise of a Shadow Government

Mike Lofgren was the first to use the term Deep State, in an essay and exclusive interview on Moyers and Company, to refer to a web of entrenched interests in the US government and beyond (most notably Wall Street and Silicon Valley, which controls access to our every click and swipe) that dictate America’s defense decisions, trade policies and priorities with little regard for the actual interests or desires of the American people. In this essential and eye-opening book Lofgren takes his argument one step further. Drawing on insights gleaned over three decades on Capitol Hill, much of it on the Budget Committee, he paints a gripping portrait of the dismal swamp on the Potomac and the revolution it will take to reclaim our government and set us back on course. Read more

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The Nation: What Is the Deep State?
The New Yorker: Trump vs. the "Deep State"
Wikipedia: Deep state in the United States
Bill Moyers, Essay: Anatomy of the Deep State
Dictionary.com: Deep State
Video w/ Mike Lofgren: Exposing the Real Deep State

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