WASHINGTON, Aug 16 (Reuters) - Administrative judges, the
adjudicators of regulatory law at U.S. government agencies, may
face a threat to their independence from political influence
under a recent court ruling.
A federal appeals court ruled in July that the Copyright
Royalty Board, a panel of administrative judges who set the rate
broadcasters pay for copyright licenses, was unconstitutional
because of the way its panelists are appointed and the job
protections they are given.
Judges on the little-known, three-member royalty board are
appointed by the Librarian of Congress without a confirmation
vote from the U.S. Senate. Historically, they could not be fired
for reasons other than misconduct. The U.S. Court of Appeals for
the D.C. Circuit ruled that the judges on the panel are not
entitled to such protection, akin to tenure.
The case was brought by a group of broadcasters looking for
a way to overturn an unfavorable ruling from the royalty board.
Although the appeals court's decision applied only to the
royalty board, legal experts said it invites challenges to the
constitutionality of the independence of other administrative
judges. Under the ruling, these judges could see job protections
stripped, making them vulnerable to termination if they rule
against the president's allies or in favor of his rivals.
"There is a serious, practical significance," Said Arti
Rai, a professor at Duke University School of Law. "The
political sway of [the president's] party now matters" to the
judges, she said.
"If they're more worried about keeping their job and paying
their mortgage than making the right decision, then people can't
really get a fair hearing," said Susan Morrison, a former
administrative judge in Texas.
Thousands of administrative judges work at U.S. government
agencies, from the Federal Communications Commission to the Drug
Enforcement Administration, dissecting the details of
regulations. Their hearings replace traditional trials when
regulations are at issue. They hear more cases than the entire
judicial branch combined, Rai said.
Though often invisible to the public, these judges'
decisions influence "billions of dollars and the fates of entire
industries," the three-judge panel of the U.S. Court of Appeals
for the District of Columbia Circuit wrote in a unanimous
The court found that under the existing structure, the
Copyright Royalty Board judges had significant authority and
little oversight. In constitutional parlance, that combination
rendered them "principal officers" requiring a presidential
appointment and Senate confirmation. By giving the Librarian of
Congress power to remove them without cause, the court
effectively demoted them to "inferior officers" -- executive
officials who are not confirmed by the Senate and have less
Administrative judges have differing degrees of oversight
and protections. Both of those factors are important in weighing
whether the arrangement is constitutional, the court said.
Rai of Duke University cautioned that if future cases are
brought challenging the constitutionality of executive-branch
judicial structures, different appeals courts could create
different standards. As a result, Rai said, the fate of any one
administrative judge could depend on which circuit reviews the
"This issue has very broad implications on a lot of
different agencies," said John Duffy, a professor at the
University of Virginia School of Law.
"If the Copyright Royalty Board is unconstitutional, there
might be a lot of adjudicators that are unconstitutional in the
executive branch," he said.
The issue may end up before the U.S. Supreme Court in its
upcoming term, Duffy said.
Although the Copyright Royalty Board ruling gives the
executive branch extra control over its administrative judges,
the U.S. Department of Justice will likely appeal the decision,
Duffy said. The Justice Department declined to comment.
"The D.C. Circuit declared a statute of Congress
unconstitutional," he said. "Usually, that's the kind of case
the Supreme Court will take."
(Reporting by Drew Singer)
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