When you challenge a government decision, the outcome may depend less on the facts of your case than on which kind of judge you happen to get. Federal administrative adjudication runs on a spectrum — and most people don't know where they fall on it until they're already in the room.
In this episode, Gwen and Marc map that spectrum. Administrative law judges (ALJs) sit at the top, with salary protections, for-cause removal protections enforced by an independent body, and no performance reviews tied to how often they side with the agency. At the other end, immigration judges are DOJ attorneys who can be fired mid-hearing — and in 2025, that's exactly what's been happening, with over 125 immigration judges removed and military lawyers being brought in as replacements with no immigration law experience required.
In between sits the IRS Independent Office of Appeals, where settlement officers conduct collection due process (CDP) hearings with real structural protections — including a ban on ex parte contact with other IRS employees — but without the same removal insulation as ALJs.
The episode's sharpest finding: Social Security disability ALJ approval rates vary by as much as 80 percentage points depending on which judge you're assigned. Same statute. Same definition of disability. Different judge, different outcome. That's not judicial discretion — that's a judge lottery.
And now the Supreme Court, following the logic of Lucia v. SEC and the unitary executive theory, may be moving toward stripping ALJs of their independence protections entirely — returning federal adjudication to something resembling the pre-APA world Congress designed the Administrative Procedure Act of 1946 to fix.
00:00:00 --> 00:00:02 Mark, imagine you're appealing a government decision
00:00:02 --> 00:00:05 that's going to cost you $10 . So you walk
00:00:05 --> 00:00:07 into the hearing room and the person across from
00:00:07 --> 00:00:09 you who's making the decision works for the same
00:00:09 --> 00:00:12 agency that made the initial determination against
00:00:12 --> 00:00:16 you. And their boss, the person who signs their
00:00:16 --> 00:00:18 performance reviews, might be the very same person
00:00:18 --> 00:00:20 who approved that initial decision you're challenging.
00:00:20 --> 00:00:23 That doesn't really sound like a neutral decision
00:00:23 --> 00:00:27 maker. Probably not. So now imagine that you're
00:00:27 --> 00:00:29 appealing a different decision. You've also got
00:00:29 --> 00:00:32 10 on the line. You walk into a hearing
00:00:32 --> 00:00:34 room, but this time the person who's making the
00:00:34 --> 00:00:37 decision has tenure -like protections. The agency
00:00:37 --> 00:00:39 can't fire them for ruling against the agency.
00:00:39 --> 00:00:43 No one is tracking how often they side with the
00:00:43 --> 00:00:45 government, or at least not in a way that affects
00:00:45 --> 00:00:48 their job. And if there's ever a complaint about
00:00:48 --> 00:00:50 their conduct, it goes to a completely separate
00:00:50 --> 00:00:52 organization. It sounds like an actual court.
00:00:53 --> 00:00:55 Both of these are different types of federal
00:00:55 --> 00:00:57 administrative hearings, and both happen every
00:00:57 --> 00:01:00 day. In these scenarios, we've got the same amount
00:01:00 --> 00:01:01 of money at stake, but we're still dealing with
00:01:01 --> 00:01:03 completely different systems with completely
00:01:03 --> 00:01:06 different decision makers. So how do you know
00:01:06 --> 00:01:09 which kind of judge you get? Does it depend on
00:01:09 --> 00:01:12 which agency you're in front of? It depends on
00:01:12 --> 00:01:15 which agency, which program, which stage of the
00:01:15 --> 00:01:17 program you're at. These are all going to depend
00:01:17 --> 00:01:20 on the type of statute that Congress happened
00:01:20 --> 00:01:22 to write. Two people who are challenging the
00:01:22 --> 00:01:25 same dollar amount or who both have their livelihoods
00:01:25 --> 00:01:27 on the line. can walk into completely different
00:01:27 --> 00:01:29 hearing rooms with completely different protections
00:01:29 --> 00:01:31 just because one owes money to the IRS and the
00:01:31 --> 00:01:34 other owes money to OSHA. So that seems like
00:01:34 --> 00:01:37 it should violate equal protection or something
00:01:37 --> 00:01:40 like that. Courts have said no, that Congress
00:01:40 --> 00:01:42 gets to design these systems, and Congress has
00:01:42 --> 00:01:44 designed dozens of them. Each has its own rules
00:01:44 --> 00:01:47 about who decides and how much independence they
00:01:47 --> 00:01:50 have and what happens if they rule against the
00:01:50 --> 00:01:52 agency. So today we are mapping that spectrum
00:01:52 --> 00:01:55 of judges, and then we'll talk about... why the
00:01:55 --> 00:01:56 Supreme Court might be about to collapse all
00:01:56 --> 00:01:59 of it. We're going to start at the top of the
00:01:59 --> 00:02:02 independence period. Administrative law judges
00:02:02 --> 00:02:05 are ALJs. But to understand why we would have
00:02:05 --> 00:02:07 ALJs, you have to understand what things looked
00:02:07 --> 00:02:10 like before. So what was the problem Congress
00:02:10 --> 00:02:12 was trying to solve? All right. This is before
00:02:12 --> 00:02:15 the Administrative Procedure Act in 1946. And
00:02:15 --> 00:02:18 at that point in time, agency adjudications were
00:02:18 --> 00:02:20 often decided by whoever the agency happened
00:02:20 --> 00:02:23 to choose. There were no independence requirements.
00:02:23 --> 00:02:26 There were no standard procedures. The person
00:02:26 --> 00:02:28 deciding your case might report directly to the
00:02:28 --> 00:02:29 same people who brought the case against you.
00:02:30 --> 00:02:32 That doesn't sound much like due process. It
00:02:32 --> 00:02:35 certainly didn't feel like it. Congress heard
00:02:35 --> 00:02:36 testimony from adjudicators who said they felt
00:02:36 --> 00:02:39 pressure to rule in favor of the agency. They
00:02:39 --> 00:02:41 heard testimony from people who were worried
00:02:41 --> 00:02:43 that the rulings they were doing against the
00:02:43 --> 00:02:45 agency could affect their performance review
00:02:45 --> 00:02:48 or their promotion or their job security. So
00:02:48 --> 00:02:53 the APA created... a new category called hearing
00:02:53 --> 00:02:56 examiners, which were later renamed administrative
00:02:56 --> 00:02:59 law judges. These are ALJs. This is the gold
00:02:59 --> 00:03:02 standard. And I'd like you to read from the statutory
00:03:02 --> 00:03:06 section on ALJ independence. This is from 5 U
00:03:06 --> 00:03:10 .S .C. 7521. An action may be taken against an
00:03:10 --> 00:03:13 administrative law judge by the agency in which
00:03:13 --> 00:03:15 the administrative law judge is employed only
00:03:15 --> 00:03:17 for good cause established and determined by
00:03:17 --> 00:03:20 the Merit Systems Protection Board. So first,
00:03:20 --> 00:03:23 we have four -cause removal protection. The agency
00:03:23 --> 00:03:25 can't fire an ALJ just because they don't like
00:03:25 --> 00:03:27 the decision. And that protection is enforced
00:03:27 --> 00:03:32 by an entirely separate body, the MSPB, not by
00:03:32 --> 00:03:35 the agency itself. So what else protects their
00:03:35 --> 00:03:39 independence? Historically, ALJs were hired through
00:03:39 --> 00:03:43 a competitive process that was run by OPM, the
00:03:43 --> 00:03:45 Office of Personnel Management. But that changed
00:03:45 --> 00:03:48 in 2018 for reasons we'll be talking about. They
00:03:48 --> 00:03:51 do have salary protections, so agencies can't
00:03:51 --> 00:03:53 cut their pay as punishment. And they can't be
00:03:53 --> 00:03:55 given performance reviews that might pressure
00:03:55 --> 00:03:58 them to rule in certain ways. They also can't
00:03:58 --> 00:04:00 be assigned other duties that would conflict
00:04:00 --> 00:04:03 with their job of judging. OK, but they still
00:04:03 --> 00:04:05 work for the agency, right? Their paychecks come
00:04:05 --> 00:04:09 from the agency. Technically, yes, but things
00:04:09 --> 00:04:11 start to get a little complicated. So in 2018,
00:04:12 --> 00:04:15 the Supreme Court decided Lucia v. SEC. And the
00:04:15 --> 00:04:19 question there was whether the SEC ALJs are officers
00:04:19 --> 00:04:22 of the United States, which we care about because
00:04:22 --> 00:04:25 the Constitution's Appointment Clause says that
00:04:25 --> 00:04:27 officers have to be appointed by presidents,
00:04:27 --> 00:04:30 courts, or heads of department. And SEC ALJs
00:04:30 --> 00:04:33 weren't appointed that way? No, they were hired
00:04:33 --> 00:04:36 by SEC staff members like regular employees.
00:04:36 --> 00:04:38 So the court looked at what the ALJs actually
00:04:38 --> 00:04:41 did. They took testimony. They conducted trials.
00:04:41 --> 00:04:43 They ruled on the admissibility of evidence.
00:04:43 --> 00:04:45 They enforced compliance with discovery orders.
00:04:46 --> 00:04:48 Here's how the court described their authority.
00:04:48 --> 00:04:52 They all have authority needed to ensure fair
00:04:52 --> 00:04:55 and orderly adversarial hearings. Indeed, nearly
00:04:55 --> 00:04:58 all of the tools of federal trial judges. After
00:04:58 --> 00:05:00 this, they said that these ALJs are officers.
00:05:01 --> 00:05:03 They're not really employees. So that meant that
00:05:03 --> 00:05:05 their appointments had been unconstitutional.
00:05:06 --> 00:05:09 Why does that classification matter beyond how
00:05:09 --> 00:05:11 they're hired? Once you decide that somebody
00:05:11 --> 00:05:13 is an officer who's exercising executive power,
00:05:14 --> 00:05:17 a new question comes into focus, a question we've
00:05:17 --> 00:05:19 already talked about a little, which is, can
00:05:19 --> 00:05:21 Congress insulate that officer from presidential
00:05:21 --> 00:05:25 removal? Under the Constitution, officers exercise
00:05:25 --> 00:05:28 executive power, and executive power is supposed
00:05:28 --> 00:05:30 to be controlled by the president. So now we
00:05:30 --> 00:05:32 could have officers making decisions that the
00:05:32 --> 00:05:34 president can't override because these people
00:05:34 --> 00:05:38 have for -cause removal protections. And that
00:05:38 --> 00:05:41 is creating major constitutional tension. So
00:05:41 --> 00:05:44 the very protections that make ALJs seem fair
00:05:44 --> 00:05:47 might be constitutionally vulnerable? Yes. Keep
00:05:47 --> 00:05:49 that in mind as we work through this spectrum.
00:05:49 --> 00:05:52 We're going to try and make this concrete. The
00:05:52 --> 00:05:55 most common way that normal people encounter
00:05:55 --> 00:05:57 an ALJ is through Social Security disability
00:05:57 --> 00:06:01 determinations. And we're looking at this a little
00:06:01 --> 00:06:03 shows the strengths and the problems with the
00:06:03 --> 00:06:05 system. Walk me through the process. You apply
00:06:05 --> 00:06:08 for disability benefits. First thing, an agency
00:06:08 --> 00:06:11 employee who is not an ALJ, just a regular employee,
00:06:12 --> 00:06:15 reviews your file and probably denies you. Initial
00:06:15 --> 00:06:19 denial rates are probably over 60%. So you officially
00:06:19 --> 00:06:22 ask for reconsideration and a different agency
00:06:22 --> 00:06:26 employee reviews it, still not an ALJ. And that
00:06:26 --> 00:06:29 employee also probably denies you. And only at
00:06:29 --> 00:06:31 that point can you request a hearing before an
00:06:31 --> 00:06:34 ALJ. So you have to lose twice before you can
00:06:34 --> 00:06:36 see someone that has any independence protections.
00:06:37 --> 00:06:39 Yes. And here's where things start to get interesting
00:06:39 --> 00:06:44 and troubling. That ALJ approval rates vary enormously.
00:06:44 --> 00:06:47 How much variation are we talking about? About
00:06:47 --> 00:06:50 as much as you could imagine. Most ALJs are going
00:06:50 --> 00:06:52 to be somewhere in the middle. But there are
00:06:52 --> 00:06:55 some ALJs approving around 10 % of cases and
00:06:55 --> 00:06:58 others are approving over 90%. Same statute,
00:06:59 --> 00:07:01 same regulation, same definition of disability,
00:07:01 --> 00:07:04 but your outcome can depend heavily on which
00:07:04 --> 00:07:07 judge you happen to get. That's an 80 percentage
00:07:07 --> 00:07:13 point swing on life -changing decisions. Yes.
00:07:13 --> 00:07:14 The Wall Street Journal did an investigation
00:07:14 --> 00:07:18 and found one ALJ who had approved 98 % of cases
00:07:18 --> 00:07:22 and another one who had approved less than 5%.
00:07:22 --> 00:07:25 Isn't some variation inevitable? I mean, different
00:07:25 --> 00:07:27 judges will weigh different evidence differently.
00:07:27 --> 00:07:30 That happens in Article III courts, too. Sure.
00:07:30 --> 00:07:32 It's a fair point. Not every judge is going to
00:07:32 --> 00:07:35 see identical cases. Geography matters. Claimants
00:07:35 --> 00:07:37 could matter. Docket composition could vary.
00:07:38 --> 00:07:41 But it's really hard to imagine a system where
00:07:41 --> 00:07:44 if the exact same person were deciding all of
00:07:44 --> 00:07:46 these decisions, that we would still have an
00:07:46 --> 00:07:48 80 -point spread. This looks like something beyond
00:07:48 --> 00:07:52 just normal judicial discretion. This creates
00:07:52 --> 00:07:55 what I would call this independence paradox.
00:07:55 --> 00:07:57 We want ALJs to be free from agency pressure
00:07:57 --> 00:08:00 to deny claims. That's the whole point of these
00:08:00 --> 00:08:04 protections. But this independence also enables
00:08:04 --> 00:08:08 these kind of incredible disparities. And when
00:08:08 --> 00:08:10 you look at those, it starts to look less like
00:08:10 --> 00:08:13 fair adjudication and more like a judge lottery.
00:08:14 --> 00:08:17 So then what's the fix? That's the hard part.
00:08:17 --> 00:08:20 So more agency oversight. might mean reduced
00:08:20 --> 00:08:23 disparities, but it would undermine independence.
00:08:23 --> 00:08:25 And it would also mean judges would probably
00:08:25 --> 00:08:28 be ruling in ways they didn't feel were actually
00:08:28 --> 00:08:32 correct. So more independence preserves fairness
00:08:32 --> 00:08:34 in individual cases and ensures that we're not
00:08:34 --> 00:08:36 denying somebody just because we need to meet
00:08:36 --> 00:08:39 a quota, but it allows these kind of great disparities
00:08:39 --> 00:08:42 to persist. There is really no clean solution.
00:08:43 --> 00:08:45 You're not really giving us an answer. No, I'm
00:08:45 --> 00:08:49 really not. This is genuinely difficult. And
00:08:49 --> 00:08:51 it's one reason that we keep circling back to
00:08:51 --> 00:08:54 these questions about ALJ independence, that
00:08:54 --> 00:08:56 the tradeoffs are real. Now we're going to move
00:08:56 --> 00:09:00 a step down this independent spectrum to immigration
00:09:00 --> 00:09:05 judges. These IJs are called judges, again, immigration
00:09:05 --> 00:09:08 judges. They wear robes. They can run hearings
00:09:08 --> 00:09:11 that look like trials, but they are not ALJs.
00:09:11 --> 00:09:14 And that distinction can literally mean the difference
00:09:14 --> 00:09:16 between life and death for people. What makes
00:09:16 --> 00:09:19 them structurally different? Immigration judges
00:09:19 --> 00:09:22 are DOJ attorneys who work for something called
00:09:22 --> 00:09:26 EOIR, the Executive Office for Immigration Review.
00:09:26 --> 00:09:29 They don't have the same civil service protections
00:09:29 --> 00:09:31 as ALJs. The attorney general can review and
00:09:31 --> 00:09:34 reverse their decisions, and they can be removed
00:09:34 --> 00:09:36 more easily. What does that mean, though, in
00:09:36 --> 00:09:39 practice? For a while, it meant they had actual
00:09:39 --> 00:09:43 production quotas. In 2018, the DOJ instituted
00:09:43 --> 00:09:46 a performance plan that required individual immigration
00:09:46 --> 00:09:49 judges to complete at least 700 cases a year
00:09:49 --> 00:09:53 and to keep their remand rate under 15 % and
00:09:53 --> 00:09:55 meet a bunch of other benchmarks, all just to
00:09:55 --> 00:10:00 be rated satisfactory. So 700 cases in a year,
00:10:00 --> 00:10:03 that's roughly three cases per working day. Yes.
00:10:03 --> 00:10:06 And if you're thinking, well... If I were running
00:10:06 --> 00:10:08 this, I could probably do three hearings in a
00:10:08 --> 00:10:10 day. That doesn't sound that much. This is the
00:10:10 --> 00:10:12 time to review the file, to conduct the hearing,
00:10:12 --> 00:10:14 to do everything you need to do after it, to
00:10:14 --> 00:10:17 write up the decisions, all of it. Three of those
00:10:17 --> 00:10:20 a day. And each one of those was potentially
00:10:20 --> 00:10:22 determining whether someone gets deported to
00:10:22 --> 00:10:25 a country where they face persecution. And there's
00:10:25 --> 00:10:27 probably a reasonable likelihood they do, or
00:10:27 --> 00:10:29 their case would have been thrown out much earlier.
00:10:29 --> 00:10:31 Immigration judges described being pressured
00:10:31 --> 00:10:33 to rush through hearings, to limit testimony,
00:10:34 --> 00:10:36 to decide cases without fully developing the
00:10:36 --> 00:10:39 record, all to try and hit these numbers. So
00:10:39 --> 00:10:41 is that system still in place? It is not. It
00:10:41 --> 00:10:44 didn't last very long. In 2021, these individual
00:10:44 --> 00:10:49 quotas were revoked, but what replaced them were
00:10:49 --> 00:10:51 court -level performance metrics. So now they're
00:10:51 --> 00:10:54 not measuring each judge, but they are measuring
00:10:54 --> 00:10:57 each court. Timeliness benchmarks for detained
00:10:57 --> 00:11:01 cases, for asylum cases, for motions, custody
00:11:01 --> 00:11:05 hearings. But they did explicitly state in 2025
00:11:05 --> 00:11:08 that they are not reinstating individualized
00:11:08 --> 00:11:10 performance measures for immigration judges at
00:11:10 --> 00:11:12 the present time. So the pressure shifted from
00:11:12 --> 00:11:15 individual judges to courts as institutions.
00:11:16 --> 00:11:18 Yeah. That 700 case quota is gone, but there
00:11:18 --> 00:11:21 are still structural pressures. Courts are still
00:11:21 --> 00:11:23 measured on speed. And when your court is being
00:11:23 --> 00:11:26 evaluated on how fast it clears cases. That pressure
00:11:26 --> 00:11:29 flows downhill to the judges, even without a
00:11:29 --> 00:11:31 number attached to their personal performance
00:11:31 --> 00:11:35 review. So what's the current situation? There
00:11:35 --> 00:11:39 is a huge backlog. It was over 4 million cases
00:11:39 --> 00:11:42 at the start of 2025. The administration has
00:11:42 --> 00:11:44 been very aggressively clearing cases through
00:11:44 --> 00:11:48 a variety of means. And it had completed over
00:11:48 --> 00:11:53 722 in fiscal year 2025 so far. This was
00:11:53 --> 00:11:56 the... Highest single year total in the agency's
00:11:56 --> 00:11:59 history. And that dropped the pending caseload
00:11:59 --> 00:12:02 to about 3 .4 million. So it sounds like progress
00:12:02 --> 00:12:04 being made. Yeah, kind of. It depends on how
00:12:04 --> 00:12:07 you measure it. A lot of these completions were
00:12:07 --> 00:12:09 just in absentia removals. The people didn't
00:12:09 --> 00:12:11 show up for their hearing and therefore they
00:12:11 --> 00:12:14 lost. Through the first nine months of fiscal
00:12:14 --> 00:12:17 year 2025, immigration judges issued over 200
00:12:17 --> 00:12:20 in absentia removal orders. So that was
00:12:20 --> 00:12:25 more than 24 a month. which was about a
00:12:25 --> 00:12:28 30 % increase over last year. So cases are being
00:12:28 --> 00:12:31 completed by deporting people who weren't there
00:12:31 --> 00:12:35 to defend themselves. Yes. And here's the structural
00:12:35 --> 00:12:38 paradox. While the administration says it wants
00:12:38 --> 00:12:40 to speed up deportations, it's also been firing
00:12:40 --> 00:12:44 immigration judges. There were about 700 immigration
00:12:44 --> 00:12:48 judges at the start of 2025. By November... They'd
00:12:48 --> 00:12:51 already lost more than 125 to firings and voluntary
00:12:51 --> 00:12:54 resignations. So they're firing judges while
00:12:54 --> 00:12:57 claiming the backlog is the problem. Yeah. So
00:12:57 --> 00:12:59 they said the judges weren't managing their caseloads
00:12:59 --> 00:13:02 efficiently, but there had been a bunch of extra
00:13:02 --> 00:13:08 money allocated to the Justice Department for
00:13:08 --> 00:13:11 immigration. related activities, like hiring
00:13:11 --> 00:13:14 judges. So instead, judges were being terminated,
00:13:14 --> 00:13:16 and they're being terminated in ridiculous ways,
00:13:17 --> 00:13:19 sometimes in the middle of hearings. They could
00:13:19 --> 00:13:21 be pulled off the bench mid -hearing, told they
00:13:21 --> 00:13:23 were fired and escorted out of the building.
00:13:23 --> 00:13:28 With no explanation? No, none given. And I would
00:13:28 --> 00:13:29 just like to point out that if what we're trying
00:13:29 --> 00:13:32 to do is clear cases, stopping in the middle
00:13:32 --> 00:13:34 of a hearing is not an efficient way we're going
00:13:34 --> 00:13:36 to clear cases. But what makes this directly
00:13:36 --> 00:13:39 relevant to what we're talking about... is these
00:13:39 --> 00:13:41 immigration judges don't have the same removal
00:13:41 --> 00:13:44 protections that ALJs have. The attorney general
00:13:44 --> 00:13:46 can fire them, can fire them right in the middle
00:13:46 --> 00:13:49 of a hearing. And so that's exactly what's happening.
00:13:49 --> 00:13:51 They're being removed, those with backgrounds
00:13:51 --> 00:13:54 in immigrant defense are being disproportionately
00:13:54 --> 00:13:59 affected. And now the administration has authorized
00:13:59 --> 00:14:02 600 military lawyers to serve as temporary immigration
00:14:02 --> 00:14:05 judges and also eliminate the prior requirement
00:14:05 --> 00:14:08 for immigration law experience. And of course,
00:14:08 --> 00:14:10 there's no right to appoint a counsel because
00:14:10 --> 00:14:14 it's technically civil. Right. Even though the
00:14:14 --> 00:14:16 Supreme Court has said that deportation is intimately
00:14:16 --> 00:14:19 related to the criminal process, it is a civil
00:14:19 --> 00:14:21 procedure. And so the Sixth Amendment protections
00:14:21 --> 00:14:25 don't apply. This means that children can appear
00:14:25 --> 00:14:27 in immigration courts without lawyers. People
00:14:27 --> 00:14:29 with severe mental illness can be appearing without
00:14:29 --> 00:14:34 lawyers. were maybe a quarter of immigrants who
00:14:34 --> 00:14:36 had any sort of attorney when a removal order
00:14:36 --> 00:14:39 was issued against them by the end of 2025. So
00:14:39 --> 00:14:41 you have judges with less independence, judges
00:14:41 --> 00:14:45 being fired without explanation, a massive backlog,
00:14:45 --> 00:14:48 in absentia orders skyrocketing, military lawyers
00:14:48 --> 00:14:50 with no immigration experience being brought
00:14:50 --> 00:14:52 in as replacements, and no guaranteed representation
00:14:52 --> 00:14:56 for the people whose lives are at stake. Yeah,
00:14:56 --> 00:14:59 that seems to about sum it up. Part of this is
00:14:59 --> 00:15:01 just the basic structural problem we've created,
00:15:01 --> 00:15:04 that the agency prosecuting you and the judge
00:15:04 --> 00:15:07 deciding your case are both part of the executive
00:15:07 --> 00:15:09 branch. The judge does not have the same kind
00:15:09 --> 00:15:12 of independence protections that we talked about.
00:15:13 --> 00:15:16 And so thinking about this, immigration judge
00:15:16 --> 00:15:19 associations for years have tried to create some
00:15:19 --> 00:15:21 sort of independent immigration court, move it
00:15:21 --> 00:15:24 out of the Department of Justice entirely, make
00:15:24 --> 00:15:27 it an Article I court like the tax court. which
00:15:27 --> 00:15:30 is technically housed within the judiciary, not
00:15:30 --> 00:15:33 within the executive branch. But that hasn't
00:15:33 --> 00:15:35 happened. So what we're seeing now is exactly
00:15:35 --> 00:15:38 what happens when adjudicators lack structural
00:15:38 --> 00:15:40 independence. The administration can reshape
00:15:40 --> 00:15:43 the bench to match its priorities. Now you can
00:15:43 --> 00:15:44 look at a system that sits somewhere in the middle
00:15:44 --> 00:15:48 of this independence spectrum. IRS appeals. It's
00:15:48 --> 00:15:51 not as protected as an ALJ adjudication, but
00:15:51 --> 00:15:55 it has some features that make it regular. that
00:15:55 --> 00:15:58 make it different from regular agency decision
00:15:58 --> 00:16:01 -making. Okay, what's the setup? When the IRS
00:16:01 --> 00:16:04 takes collection action against you, like filing
00:16:04 --> 00:16:06 a lien on your property or preparing to levy
00:16:06 --> 00:16:08 your bank account, you have certain rights to
00:16:08 --> 00:16:11 challenge that action. One of the most important
00:16:11 --> 00:16:14 is the Collection Due Process Hearing, or CDP
00:16:14 --> 00:16:18 hearing. Who hears those? There are... Settlement
00:16:18 --> 00:16:20 officers and appeals officers in what's called
00:16:20 --> 00:16:22 the Independent Office of Appeals. Here's how
00:16:22 --> 00:16:25 the IRS describes their role. Appeals is an independent
00:16:25 --> 00:16:29 function within the IRS completely separate from
00:16:29 --> 00:16:31 the compliance functions responsible for collecting
00:16:31 --> 00:16:34 and assessing taxes. Appeals provides an informal
00:16:34 --> 00:16:37 forum for taxpayers who disagree with an IRS
00:16:37 --> 00:16:41 determination. Our job is to resolve tax disputes
00:16:41 --> 00:16:44 without litigation where possible consider each
00:16:44 --> 00:16:47 case fairly and impartially. So notice there's
00:16:47 --> 00:16:50 an emphasis on independent and separate. That
00:16:50 --> 00:16:52 language matters. It's trying to signal that
00:16:52 --> 00:16:53 the person reviewing your case isn't the same
00:16:53 --> 00:16:55 person who decided to come after you in the first
00:16:55 --> 00:16:59 place. But they're still all IRS employees. Yes,
00:16:59 --> 00:17:02 they still are. We're talking about over a thousand
00:17:02 --> 00:17:04 people. These are mostly appeals officers and
00:17:04 --> 00:17:07 settlement officers. But what makes the system
00:17:07 --> 00:17:09 different here is that they have strict structural
00:17:09 --> 00:17:13 protections for independence. So first. There
00:17:13 --> 00:17:15 was a 1998 restructuring act where they were
00:17:15 --> 00:17:17 prohibited from ex parte communication with other
00:17:17 --> 00:17:20 IRS employees, which means they couldn't do back
00:17:20 --> 00:17:22 -channel conversations about your case without
00:17:22 --> 00:17:25 you present. And second, for collection due process
00:17:25 --> 00:17:27 hearings, it requires that the appeals officer
00:17:27 --> 00:17:30 have had no prior involvement with that specific
00:17:30 --> 00:17:33 tax liability. So the person deciding my appeal
00:17:33 --> 00:17:36 can't be the same person who audited me. Right.
00:17:36 --> 00:17:39 And the settlement... Officer deciding the CDP
00:17:39 --> 00:17:41 hearing also can't call up the revenue officer
00:17:41 --> 00:17:43 who put a lien on your house and say, hey, what's
00:17:43 --> 00:17:46 your read on this guy? They have to decide based
00:17:46 --> 00:17:48 on what's in the file and what you present to
00:17:48 --> 00:17:52 them. So what does a CDP hearing actually look
00:17:52 --> 00:17:55 like then? It'll usually be conducted by phone
00:17:55 --> 00:17:58 or correspondence, sometimes by video. You can
00:17:58 --> 00:18:00 present documentation, explain your circumstances,
00:18:01 --> 00:18:03 propose alternatives, maybe think about some
00:18:03 --> 00:18:06 sort of installment agreement or an offer where
00:18:06 --> 00:18:08 you settle for less than you owe. And if you
00:18:08 --> 00:18:11 lose? So here's where there's a real potential
00:18:11 --> 00:18:14 advantage over other agency processes. You get
00:18:14 --> 00:18:17 to take your case to tax court. The IRS has to
00:18:17 --> 00:18:19 give you a notice of determination explaining
00:18:19 --> 00:18:22 your decision. And then you have 30 days to petition
00:18:22 --> 00:18:25 for judicial review. So there's actually a path
00:18:25 --> 00:18:28 to an Article III court. Well, there's a path
00:18:28 --> 00:18:30 to an Article I court, the tax court. But this
00:18:30 --> 00:18:34 is real judicial review. That's unusual. And
00:18:34 --> 00:18:36 that's partly because, again, that... Article
00:18:36 --> 00:18:38 I tax court isn't within the executive branch.
00:18:38 --> 00:18:41 It's within the judiciary. Most agency adjudication
00:18:41 --> 00:18:44 processes don't give you that direct an access
00:18:44 --> 00:18:47 to an independent court. So we've got informal
00:18:47 --> 00:18:50 hearings, but with judicial review at the end.
00:18:50 --> 00:18:53 Okay. So what's the catch? How are they really
00:18:53 --> 00:18:56 different from than ALJs? First, they don't have
00:18:56 --> 00:18:59 the removal protections that ALJs have. They're
00:18:59 --> 00:19:01 career civil servants, but they just have normal
00:19:01 --> 00:19:04 civil servant job protection. They don't have
00:19:04 --> 00:19:07 special insulation. Second, there are over 130
00:19:07 --> 00:19:12 appeals a year with just these 1 employees.
00:19:12 --> 00:19:16 So you could say resources are a bit stretched.
00:19:16 --> 00:19:19 Third, it's independent within the IRS, but it's
00:19:19 --> 00:19:22 still within the IRS. The culture, the institutional
00:19:22 --> 00:19:25 pressures, the career incentives, they're all
00:19:25 --> 00:19:27 in the same building. So it's better than nothing,
00:19:27 --> 00:19:31 but not quite neutral. Yes, it is a genuine attempt
00:19:31 --> 00:19:34 at internal independence. And it looks like...
00:19:34 --> 00:19:38 Probably 40 % of the cases are resolved at least
00:19:38 --> 00:19:41 partially in the taxpayer's favor, which is meaningful.
00:19:41 --> 00:19:43 But it's not the same as having your case heard
00:19:43 --> 00:19:45 by somebody who has no institutional connection
00:19:45 --> 00:19:48 to the agency that's trying to collect from you.
00:19:48 --> 00:19:50 But now we're going to circle back to that constitutional
00:19:50 --> 00:19:53 tension we flagged at the beginning. She has
00:19:53 --> 00:19:56 said that ALJs are officers of the United States,
00:19:56 --> 00:19:58 which means they have to be appointed in accordance
00:19:58 --> 00:20:01 with the Appointments Clause. Which already moves
00:20:01 --> 00:20:03 them closer to presidential control. Yes. And
00:20:03 --> 00:20:05 once we've classified somebody as an officer
00:20:05 --> 00:20:09 exercising executive power, then we can look
00:20:09 --> 00:20:11 at how can Congress insulate that officer from
00:20:11 --> 00:20:14 presidential removal? The removal power question
00:20:14 --> 00:20:18 from season one. Yes. So these are also likely
00:20:18 --> 00:20:20 to fall the same way many removal protections
00:20:20 --> 00:20:24 are about to fall. But since we don't have an
00:20:24 --> 00:20:26 actual decision yet, let's read you what the
00:20:26 --> 00:20:28 court has been thinking about how this constitutional
00:20:28 --> 00:20:32 framework applies. This is from the court's opinion
00:20:32 --> 00:20:34 in Celia Law. The president's removal power has
00:20:34 --> 00:20:36 long been confirmed by history and precedent.
00:20:36 --> 00:20:39 It was discussed extensively in Congress when
00:20:39 --> 00:20:41 the first executive departments were created
00:20:41 --> 00:20:45 in 1789. The court is trying to ground this in
00:20:45 --> 00:20:47 the founding generation's understanding of the
00:20:47 --> 00:20:51 Constitution. And then they go on to say, just
00:20:51 --> 00:20:52 as the president's selection of administrative
00:20:52 --> 00:20:55 officers is essential to the execution of the
00:20:55 --> 00:20:58 laws by him, so must be his power of removing
00:20:58 --> 00:21:01 those for whom he cannot continue to be responsible.
00:21:01 --> 00:21:04 To hold otherwise, the court reasoned, would
00:21:04 --> 00:21:06 make it impossible for the president to take
00:21:06 --> 00:21:08 care that the laws be faithfully executed. So
00:21:08 --> 00:21:10 when they say that, they're quoting Myers, the
00:21:10 --> 00:21:14 1926 case, and then he connects it back to the
00:21:14 --> 00:21:17 modern era. And they say, we recently reiterated
00:21:17 --> 00:21:19 the president's general removal power and free
00:21:19 --> 00:21:23 enterprise fund. Since 1789, we recapped the
00:21:23 --> 00:21:25 Constitution has been understood to empower the
00:21:25 --> 00:21:27 president to keep these officers accountable
00:21:27 --> 00:21:31 by removing them from office if necessary. Free
00:21:31 --> 00:21:33 enterprise fund left in place only two exceptions
00:21:33 --> 00:21:35 to the president's unrestricted removal power.
00:21:35 --> 00:21:39 So that was two exceptions. Multi -member commissions
00:21:39 --> 00:21:42 like the FTC, which, again, we don't expect to
00:21:42 --> 00:21:45 be around for much longer. and inferior officers
00:21:45 --> 00:21:47 with limited duties like the independent counsel.
00:21:48 --> 00:21:50 Everyone else serves at the president's pleasure.
00:21:50 --> 00:21:53 You can see the court is increasingly skeptical
00:21:53 --> 00:21:55 of arrangements that try to place any sort of
00:21:55 --> 00:21:57 executive power beyond presidential supervision.
00:21:58 --> 00:22:00 We talked about this before with independent
00:22:00 --> 00:22:03 agencies. Same logic applies to independent adjudicators.
00:22:03 --> 00:22:05 So even though the court hasn't ruled directly
00:22:05 --> 00:22:08 on ALJ removal... Yeah, the trajectory is clear.
00:22:09 --> 00:22:11 If we're going to go with the unitary executive
00:22:11 --> 00:22:13 theory... and that says the president must be
00:22:13 --> 00:22:16 able to supervise all executive officers, and
00:22:16 --> 00:22:20 ALJs are executive officers, then deep insulation
00:22:20 --> 00:22:23 for removal becomes harder, if not impossible,
00:22:23 --> 00:22:26 to justify. So if ALJs lost for cause protection,
00:22:27 --> 00:22:30 what would actually happen? It would mean that
00:22:30 --> 00:22:33 Social Security could fire ALJs if their approval
00:22:33 --> 00:22:37 rates were too high. The SEC could remove ALJs
00:22:37 --> 00:22:39 who ruled against the enforcement action too
00:22:39 --> 00:22:42 often. Agencies could pressure judges to align
00:22:42 --> 00:22:45 with policy priorities, maybe not through explicit
00:22:45 --> 00:22:48 orders, but through the inherent implicit threat
00:22:48 --> 00:22:51 that comes with at -will employment. So adjudicators
00:22:51 --> 00:22:53 would face pressure to rule the way the agency
00:22:53 --> 00:22:56 wants them to rule. Exactly, which is exactly
00:22:56 --> 00:23:00 what the 1946 APA was designed to prevent. We'd
00:23:00 --> 00:23:02 be back to that pre -APA world where the person
00:23:02 --> 00:23:04 deciding your case worries about what the agency
00:23:04 --> 00:23:07 thinks of the decision. The features that make
00:23:07 --> 00:23:09 ALJs fair are the same features that make them
00:23:09 --> 00:23:12 constitutionally vulnerable. Yes. And the court
00:23:12 --> 00:23:15 hasn't officially said it yet. But there are
00:23:15 --> 00:23:17 about 2 ALJs across the federal government,
00:23:18 --> 00:23:20 and they are deciding hundreds of thousands of
00:23:20 --> 00:23:24 cases every year. And when the court, what seems
00:23:24 --> 00:23:26 like nearly inevitably, says that that level
00:23:26 --> 00:23:29 of independence violates the separation of powers.
00:23:29 --> 00:23:31 Then the system shifts towards more presidential
00:23:31 --> 00:23:35 control. more agency supervision, and adjudication
00:23:35 --> 00:23:38 that looks a lot less like judging. So here's
00:23:38 --> 00:23:40 what I'm taking away. We want adjudicators to
00:23:40 --> 00:23:43 be independent so they can be fair, but we also
00:23:43 --> 00:23:45 want consistency, accountability, and constitutional
00:23:45 --> 00:23:50 compliance. Those goals can and seemingly often
00:23:50 --> 00:23:54 conflict. Yes, too much independence and we can
00:23:54 --> 00:23:56 get these 80 -point approval rate disparities.
00:23:57 --> 00:23:59 Too little independence and we have hearing officers
00:23:59 --> 00:24:01 who are afraid to rule against their own agency.
00:24:02 --> 00:24:03 even if they think that's what the case really
00:24:03 --> 00:24:07 calls for. And now we have the Supreme Court
00:24:07 --> 00:24:09 questioning whether Congress can even give adjudicators
00:24:09 --> 00:24:11 any insulation from presidential control. The
00:24:11 --> 00:24:14 whole spectrum seems like it's under pressure.
00:24:14 --> 00:24:17 Yes, from multiple directions. As the court continues
00:24:17 --> 00:24:19 in its current direction, we can expect to see
00:24:19 --> 00:24:21 significant changes in how federal adjudication
00:24:21 --> 00:24:25 works across the board. What's next then? Now
00:24:25 --> 00:24:27 that we've talked about who these judges are,
00:24:28 --> 00:24:30 how they're currently protected or not protected,
00:24:31 --> 00:24:33 We have to look at a different question. What
00:24:33 --> 00:24:35 happens when the same agency that's investigating
00:24:35 --> 00:24:38 you is the agency judging you? What about when
00:24:38 --> 00:24:40 the prosecutor and judge work for the same boss?
00:24:40 --> 00:24:44 What does that actually mean? That's next time.
00:24:44 --> 00:24:46 That sounds like a due process problem. It might
00:24:46 --> 00:24:49 be. Or this might just be an acceptable future
00:24:49 --> 00:24:51 of administrative efficiency. We will dig into
00:24:51 --> 00:24:51 it.