Administrative Law Judges and the Erosion of the Administrative State: Why Jarkesy May Be the Straw that Breaks the Camel\u27s Back

Abstract

The Trump-era unitary executive movement sought to expand presidential power and shrink the influence of the administrative state through deregulation. This movement ripples into the present moment, as Trump’s overhaul of the federal judiciary installed a comprehensive system to delegitimize administrative agency action— a system that is certain to endure. The independence and role of administrative law judges (ALJs) has proven a key target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause removal protections of SEC ALJs violated the Take Care Clause of Article II of the Constitution. This Comment argues that the Constitution sets out a functional inquiry for evaluating the removability of officials in the Take Care Clause, as opposed to the categorical inquiry erroneously adopted by the Fifth Circuit. If upheld by the Supreme Court, Jarkesy and the curtailment of ALJ independence will have a profound impact on not only the SEC, but all agencies, and the very fate of the administrative state