(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.