(07-26-2018 09:36 AM)arkstfan Wrote:  The point of the ALJ system is to have an adjudicator deal with an agency vs public conflict without going to court. I've appeared before environmental law, tax law, and disability ALJs.
The ALJ is job secure as long as they do their work and they determine cases in line with the regulations and statutes.
If they are not policy compliant they can be fired.

And who determines what "policy compliant" means? How would you distinguish "policy compliant" from "a functionary rubber stamping the decisions of the agency" (see below)? If the Executive Director of the commission/agency, or the commissioners themselves, make that decision, I doubt those two can be distinguished.

Quote:But the point of creating the system is to resolve those conflicts applying the law the way the US District Court would resolve them without flooding the world with a couple thousand more appointed for life judges, removable only by impeachment and to avoid every aggrieved citizen needing to hire a full blown legal team.

I'm not contemplating "a couple thousand more appointed for life judges, removable only by impeachment." I'm contemplating a number in line with the current number of ALJs. Texas and Oregon do it by having a separate executive office of administrative hearings with at least theoretically independent ALJs. Europe does it with separate administrative law courts that would be Article III courts in US terminology. Both models are working now, so whatever problems you foresee are not insurmountable. I prefer the European approach, with administrative law courts in each federal district, appointed by the federal district court judges, with renewable terms instead of for life. Based on the Texas and Oregon experience, I would anticipate that initial hires would consist primarily of redistributing the current ALJ population geographically instead of by agency. Jurisdiction would lie in the district where the cause of action arose and appeal would be through that district and circuit. One advantage would be to clarify interagency discrepancies--where you have one agency telling you to do one thing and another telling you something different, you combine them in one proceeding and resolve it. You would end up with some inter-circuit differences--I can certainly imagine that EPA disputes might be resolved differently in the 5th and 9th circuits--but at least there is the Supreme Court to resolve them.

Quote:If the ALJ becomes a functionary rubber stamping the decisions of the agency that's a sham trial in a kangaroo court and you've sent hundreds of thousands of disputes to the District Courts.

If the ALJ wants a career, he/she must become pretty much, "a functionary rubber stamping the decisions of the agency." Compare how often the agency wins before an ALJ (I've heard 97%) with how often the agency wins in court (I've heard ~60%). And you've just agreed that's a due process problem.

I'm very concerned that American nationals are subject to all manner of off-the-wall hassles from essentially unchecked administrative agencies, and as long as the only judicial route of appeal in many cases involves an expensive DC District court case, including the costs of requiring petitioners to be away from home and business, the unfortunate targets have little practical recourse. One other thing--centralizing this process in agency ALJs with appeal to the DC Circuit definitely makes the system an easier target for lobbyists than would be a dispersed system.

(07-26-2018 09:36 AM)arkstfan Wrote:  

(07-25-2018 05:08 PM)Owl 69/70/75 Wrote:  

(07-24-2018 06:21 PM)arkstfan Wrote:  

(07-24-2018 04:04 PM)Owl 69/70/75 Wrote:  

(07-24-2018 11:53 AM)arkstfan Wrote:  So basically you are saying we've done it since the FBI was founded (see Hoover, J. Edgar) and tried to use the IRS that way at least since FDR though Nixon took it to the pinnacle.
Interestingly it was the career people who exposed those efforts by the political appointees. Oddly the current administration is trying to reduce the protections for the career people.
A new and bigger swamp!

Career people "exposed those efforts by the political appointees"? Really? That's not what I saw. I saw the career people circle the wagons and it was elected political representatives who exposed it. Maybe we are defining terms differently.
And the current administration "is trying to reduce the protections for career people"? Again, really? Again, that's not what I'm seeing. Perhaps you can enlighten me. And quite frankly, if that is what is happening, then in my opinion that is a good thing.
What I see is an entrenched bureaucracy staffed by an army of nameless, faceless, unaccountable career bureaucrats who are going to do whatever they damn well please, regardless of party in power, and get away with it because they are incredibly adept at passing the buck. And this administration is a direct threat to that entrenched bureaucracy, so they are fighting back, tooth and nail, with every means at their disposal.
There is no more irrelevant factoid than that some career bureaucrat is a democrat or republican. They are whatever party best advances their career. If you want to talk about people who "went to Washington to do good, but ended up doing well instead," that description is far more apt for career bureaucrats that for career politicians. And it's pretty apt for career politicians. Thee's a reason why the top three counties in the US for average household income, and 7 of the top 12, are in the DC metro area. And it's those people collectively stealing (yes, that's the right word) our tax dollars.
I personally believe that it is high time, if not well past time, for the congress to reassert itself and take back some of the power that it has willingly passed off to these nameless, faceless, unaccountable bureaucrats. But that requires a congress that is willing to take some accountability back home, and I don't see congress as willing to kick over its own rice bowls either.

Your understanding is all wrong.
Federal employment in the executive branch basically breaks down into three categories.
1. Positions appointed with the consent of the Senate
2. Positions appointed by the president or head of the agency or designated deputy.
3. Competitive positions (ie.civil service, which is often used to describe competitive positions that aren't technically civil service).
People in group 1 generally leave when the president leaves or they are appointed for a term of years. Whichever the case, the Senate has to approve their hiring.
People in group 2 could be political friends, might be hired as a favor, or might just be an employee who for whatever reason has found favor with someone up the food chain.
People in group 3 come from a competitive hiring system. It may mean taking the civil service exam, a law enforcement exam, or any number of other procedures. If you are best pals with the president, the speaker of the house, and president of the senate, none of that political goodwill can get you a competitive position unless you score high enough to be considered (generally top 3 scores among the candidates for the specific opening are all that are considered, some positions top 5).
Take Strozk and Page from the FBI. Now they might have started their career in the FBI via competitive employment but neither was in a competitive employment position at the time of their bad acts.
They were in group 2. They had been hired into or moved into non-competitive positions. Maybe they got the positions politically (ie. some political official wanted them hired) or maybe they just happened to have earned the favor or the political hired person who put them in that position (indirectly poltical).
They were exposed by the Office of Inspector General. Many if not most IG positions are competitive hired (FBI has some weird carve outs so can never be sure) and based on all that has emerged their texts came to light because more than one competitively hired person reported them to the IG.
The IRS official who was holding up the review of charitable organizations? Appointed. Not a competitive hire. The scheme was revealed when career competitive hires reported it.
Competitive hire (civil service) employees get their jobs based on merit and work under a maze of presidential appointees and general hacks who owe their position to someone saying bozo there would be a good fit at X agency. The competitive hire employees don't really care who is president because they know that if they don't break the law and they follow the law and the adopted regulations that they will still be there when this group is gone.
As to the President.
Two weeks ago he issued a pair executive orders. One declared that deputy US Marshalls would no longer be hired competitively. The US Marshall for a judical district if there is a vacancy can hire a kid from McDonalds who has a GED and has never been a law enforcement officer nor even held a gun.
By taking the deputy positions out of competitive employment the president eliminated the veteran's preference. One of the rewards for volunteering to serve your country is 5 points added to your score if you served during the Vietnam War, Desert Storm, Afghanistan or Iraq. You could also get 10 points for either a service-connected disability (which would likely preclude you from meeting the physical requirements to be a deputy marshal) or you earned a purple heart (which might not cause an issue).
The same day he issued an order removing all future hired administrative law judges from competitive hiring. (apply fill out lots of forms, pay your way to a scored interview, pay your way to a scored exam) and then the top 3 scores are up for a position.
The ALJ's are granted independence as long as they follow the law and stay out of trouble.
So today if a company appears before the Securities and Exchange Commission or the FCC or the FDA the ALJ that hears their case is competitively hired and will weigh the facts, the law and the regulations and issue a decision. The head of the FDA can't call up an ALJ say "Look Bayer shouldn't be fined for failing to disclose those side effects".
However the new hires won't be competitively hired, do not have to have any legal experience all other than passing the bar exam. A memo leaked from DOJ yesterday tells agency heads the agency will argue that failing to follow instructions is good cause to fire an ALJ. So the head of the FDA can call up the ALJ and tell them don't fine Bayer, don't fine Sinclair, don't fine Merrill-Lynch and then fire the ALJ for cause and the administration will back them up for the firing.
Anyone who thinks this is an improvement doesn't understand how it works.
If Wells Fargo defrauds little old ladies or GlaxoSmithKline ships a drug knowing it causes seizures in some people and doesn't disclose it, they can use their political clout to get the SEC or FDA to rule in their favor and then stand before a jury and say, "If what we did were bad, the SEC (or FDA) would have found we did wrong and fined us and ordered us to stop" even though they fixed the outcome in front of the SEC or FDA.

You’re telling me what the rules say. I’m telling you how things work. An ALJ who rules against the agency with any consistency is going nowhere career-wise. You may be employed by such an agency—your post certainly suggests great familiarity with the written rules—and you may wish to serve as an apologist for them. I have worked in/for/around several, both state and federal, but I have no wish to be an apologist.

As I have said before, bureaucrats know four levels of classified information—the usual confidential, secret, and top secret, plus embarrassing to the agency. And there’s only one of those hills they will die to defend. Do I have a low opinion of career bureaucrats, particularly federal? Yep.

The point of the ALJ system is to have an adjudicator deal with an agency vs public conflict without going to court. I've appeared before environmental law, tax law, and disability ALJs.

The ALJ is job secure as long as they do their work and they determine cases in line with the regulations and statutes.

If they are not policy compliant they can be fired.

The problem is that, while the 'fired' thing is bad, the Supreme Court with no doubt has opined that they are *not* 'employees' and very much *are* 'officers'. And as such they are subject to appointment from the executive branch, and not subject to hire from a protected civil servant system. Kind of a tough cliff to climb up after Lucia. Have fun with that.

Quote:But the point of creating the system is to resolve those conflicts applying the law the way the US District Court would resolve them without flooding the world with a couple thousand more appointed for life judges, removable only by impeachment and to avoid every aggrieved citizen needing to hire a full blown legal team.

Hate to say but many ALJ-bound issues require nearly the amount of legal representation than that for a District trial.

Quote:If the ALJ becomes a functionary rubber stamping the decisions of the agency that's a sham trial in a kangaroo court and you've sent hundreds of thousands of disputes to the District Courts.

If it is a 'rubber stamp' then there are true due process issues. But Lucia requires the appointment.

Here's a good one ... San Francisco passed proposition C, the biggest tax hike in city history, to tax businesses to pay for the all of the homeless in San Francisco. Are you the mayor of a city with a homeless problem? I bet you it's cheaper to pay for a bag of food and beverages and a one way bus ticket for all of the homeless to go to San Francisco than it is to deal with them locally.

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