Page 678. Add the following to Note 7.

     Two Courts of Appeals have now reached opposite conclusions on this question. In Decker Coal Co. v. Pehringer, 8 F.4th 1123 (9th Cir. 2021), the court upheld the Department of Labor’s use of ALJs in adjudicating claims for black lung benefits. It stressed the ALJ’s adjudicatory function, the fact that its decision was reviewable by members of the Benefits Review Board (who could be fired by the Secretary of Labor who in turn serves at the president’s pleasure), and the long historic pedigree of for-cause protections for ALJs.

In Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022), aff’d on other grounds, 144 S. Ct. 2117 (2024), a divided panel of the Fifth Circuit held that ALJs’ double or triple for-cause protection was unconstitutional. Noting that in Myers the Supreme Court “said that ‘quasi[-]judicial’ executive officers must nonetheless be removable by the President ‘on the ground that the discretion regularly entrusted to that officer by statute has not been on the whole intelligently or wisely exercised,’” the majority concluded that “even if ALJs’ functions are more adjudicative than PCAOB members, the fact remains that two layers of insulation impedes the President’s power to remove ALJs based on their exercise of the discretion granted to them.” Because ALJs are inferior officers, Lucia, “they are sufficiently important to executing the laws that the Constitution requires that the President be able to exercise authority over their functions.” The dissent stressed ALJs’ purely adjudicative functions and the fact that ultimate decisionmaking authority lies with the Commission.

The opinions in the two cases are at odds, but the results could conceivably be distinguished on the grounds that (a) the Department of Labor chose, but was not required by statute, to assign cases to ALJs and/or (b) the Department of Labor is an executive agency and the SEC an independent one.

In Fleming v. Department of Agriculture, 987 F.3d 1093 (D.C. Cir. 2021), the D.C. Circuit declined to rule on the double-for-cause issue because the petitioners had not exhausted administrative remedies. Dissenting, Judge Rao would have struck down the dual for-cause protections. “When the two for-cause removal restrictions are combined, neither the President nor the Secretary has any meaningful power to remove ALJs from office,” even if the president disagrees with the ALJ’s use of executive power. And ALJs are not “categorically different from other Executive Branch officers.”

In Jarkesy the Supreme Court granted cert on this question but affirmed on other grounds. See the chapter 2 update for pages 212-214.

Page 689. Replace note 2 with the following.

     2. The FTC rejected Facebook’s 2021 petition. It did so, without addressing the merits, on the ground that no proceeding involving Facebook was pending before the Commission when the petition was filed.

Page 690. Add the following after note 3.

Facebook recusal petitions.