To administer and preside over federal agency hearings, the executive branch utilizes thousands of administrative law judges (ALJs), the largest number of which are employed by Social Security Administration. An ALJ is authorized to regulate the course of the hearing, administer oaths, examine witnesses, issue subpoenas, rule on evidence, and make findings of fact and conclusions of law.
Under the Administrative Procedures Act (APA) of 1946, the position of "hearing examiners" (as they were then known), was created to ensure fairness and due process in executive agency actions. Their independence was generally upheld in 1953, when the Supreme Court noted that hearing examiners have a special status that must be protected against incursions by agency executives, despite arguments that a change in job title would adversely affect the ability of the agency to monitor productivity and lead to possible confusion with Article III judges who are true members of the judicial branch (Ramspeck v. Federal Trial Examiners' Conference, 1953). Around 1971, these "hearing examiners," banded together to advocate for a change in job title (Frank Borowicz, Upholding the Rule of Law, 2010). After considerable political maneuvering, they successfully persuaded Congress to adopt the title of "Administrative Law Judge" with Public Law 95-251 (1978).
In a recent appellate court decision, the Tenth Circuit held that administrative law judges in the Security Exchange Commission hold their offices in violation of the Appointments Clause under Article II of the Constitution (Bandimere v. SEC, 2016). This begs the question whether administrative law judges in other agencies such as Social Security Administration are unconstitutional as well. With such a holding, the future authority of all administrative law judges may lie on tenuous ground. Although the Tenth Circuit dismisses an implosion of federal civil service as mere speculation, the dissent notes that moving forward, every party losing before an ALJ now has grounds for an appeal.