Does the Supreme Court intend to dismantle the Administrative State? At first glance, the court’s recent decision in Axon Enter. v. FTC, 2023 U.S. LEXIS 1500 (April 14, 2023), can be read as indicating that the court has now gone well down this road. In reality, however, this unanimous decision masks a lack of consensus and shows the court to be straddling—at least for the time—a deep division over whether administrative agencies can utilize administrative law judges. If they cannot, their enforcement powers as a practical matter will be greatly weakened and their efficiency significantly compromised.

Until recently, when a federal administrative agency sought to enforce its statute or rules, its preferred approach would have been to commence an administrative proceeding and delegate its adjudication to an administrative law judge (ALJ), whose decision could be appealed to the agency’s Commissioners and ultimately to the Court of Appeals. This approach was cheaper, quicker and also generated more favorable decisions for the agency than litigation in the federal district courts.

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