Mark Henry Ishu Authored Law360’s “The Future of DOL Judge Removal Challenges After Slaughter”

The following is an excerpt from the article:

On June 29, the U.S. Supreme Court decided Trump v. Slaughter, holding that statutory for-cause removal protections for commissioners of the Federal Trade Commission violate Article II, overruling its 1935 decision in Humphrey’s Executor v. U.S.

Although Slaughter did not address administrative law judges, its reasoning has potentially significant implications for U.S. Department of Labor ALJs, who are protected from removal by a statutory structure that places two layers of removal protection between the president and the ALJ.

For lawyers handling DOL whistleblower claims, Slaughter raises significant questions about
the constitutionality of DOL ALJ removal protections, and whether those protections can be
severed without altering the adjudicatory structure Congress created.

The answers may differ among whistleblower statutes, making the governing statute important not only to the constitutional analysis, but also to the practical choice between preserving the issue through administrative review and seeking prospective relief in federal court.

• Law360 subscribers may access the full article on Law360.
• Non-subscribers can download a PDF of the article.