Today I will have the distinct honor of speaking at the 25th anniversary conference of the Association of Administrative Law Judges (AALJ) in San Diego. The AALJ is an assemblage of 1300 Administrative Law Judges (ALJs) employed by the Social Security Administration. They handle hundreds of thousands of cases each year in a critical adjudicatory role in our federal system. I will be speaking about the rise of the Fourth Branch of federal agencies in our tripartite system and the dangers that it presents to our constitutional system. I will also be discussing how this massive shift of power to the agencies has presented serious ethical and practical problems for our ALJs who are faced with ever rising dockets with limited resources. I will be speaking at the Windham Bayside at 9:00am.

The figures of the caseload of the ALJs are simply daunting. ALJS are expected to rule on between 500-700 cases a year. That translates to no more than 2.5 hours to adjudicate a case; a review of the record of one hour, a hearing of an hour, and drafting instructions and editing the draft of 30 minutes.

This caseload raises core questions of due process and fairness for litigants in a factory-like system of case quotas and abbreviated hearings. ALJs are facing rising numbers of cases with relatively stagnant budgets. The result is an expected pace that could only be truly appreciated by an assembly line worker in Detroit.

Rather than address these rapidly declining conditions, a proposal has been put forward to take many cases away from ALJ judges entirely and just have them decided by “attorney examiners” — a move that would push the system even farther from the model of a federal court.

These ALJs now composed a force that is larger than the entire federal judiciary. Yet, they are subject to shifting expectations and qualifications promulgated by agencies. The difficult situation with our ALJ system is a poignant remainder of how our system is changing through the improvised expansion of the fourth branch of government.