On March 3, the Supreme Court will hear oral arguments in Carr v. Saul—a case challenging the denial of Social Security benefits. But the issue before the Court has little to do with the actual intricacies of the Social Security benefits process. It is not even about the alleged constitutional deficiency with the process—that the appointment of Social Security Administration (SSA) Administrative Law Judges (ALJs) violated the Appointments Clause. The only question is whether the administrative issue exhaustion requirement applies to constitutional claims and thus prevents the appellants from raising an Appointments Clause challenge for the first time in federal court. That is, did the people applying for benefits have to raise their constitutional objection while before ALJs, or could they wait until reaching an Article III judge?
Issue exhaustion is often described as a general principle of administrative law. Because of the requirement of issue exhaustion, an individual cannot raise claims for the first time in federal court when they failed to do so during the relevant administrative proceeding. Put another way, issue exhaustion means if an individual fails to raise a claim during an administrative proceeding, they lose the ability to bring the claim in federal court on appeal.
This rule can make some sense; for example, when the claim not raised involves a technical aspect of the benefits program or regulatory scheme that Congress has entrusted the agency with running. But there is a difference between questions of statutory and regulatory interpretation and claims of constitutional violations. As my colleagues and I argued in an amicus brief we filed in support of the petitioners in Carr, administrative issue exhaustion for constitutional claims raises both Article III and Due Process Clause concerns.
Article III of the Constitution gives judges life tenure and prohibits their salaries from being reduced while they are in office. Both measures ensure that the judiciary can remain independent. Independence is crucial because, as Alexander Hamilton explained in Federalist 78, courts are to be “bulwarks of a limited Constitution against legislative encroachments,” and it is their duty “to declare all acts contrary to the manifest tenor of the Constitution void.” Independence helps to ensure that judges can check the other two branches without fear of reprisal that could cost them their livelihoods.
Yet ALJs are not, and frankly cannot be, independent. They are employees of the executive branch, and therefore they constitutionally have to be—at least to a large degree—under the watch of the executive. Thus, requiring issue exhaustion for constitutional claims in essence requires an individual to first go through a non-independent—and powerless—adjudicator to get to the branch whose core role it is to adjudicate constitutional disputes. Requiring issue exhaustion for constitutional questions thus flips the script and makes administrative agencies the primary adjudicators of constitutional claims, as they supplant the role originally intended for Article III courts, a role for which independence is a prerequisite.
Administrative issue exhaustion requirements also raise Due Process Clause concerns where, as here, the ALJs and the agency are powerless to remedy the alleged constitutional deficiency. The Due Process Clause requires a “meaningful opportunity” to be heard. But the application of issue exhaustion in situations like this deprives litigants of a meaningful forum for their constitutional claims by requiring them to raise them before an agency with no power to remedy such claims. Here, the ALJs were unable to cure their own unconstitutional appointments. The SSA Commissioner was powerless as well. President Trump had to sign an executive order removing the job protections from the SSA ALJs before the Commissioner could reappoint them in a manner comporting with the Appointments Clause. Thus, administrative issue exhaustion here would be little more than requiring an empty gesture to get into a meaningful forum to raise a constitutional claim, which never could rule on the claim in the first place.
And this situation is not unique. The Supreme Court in Mathews v. Eldridge in 1976 explained that it would be unrealistic to expect agencies to “consider substantial changes in the current administrative review system at the behest of a single aid recipient raising a constitutional challenge in an adjudicatory context.” This is because it is not the role of ALJs to render constitutional judgments, especially judgments about their own authority as employees of the executive branch.
A Supreme Court decision recognizing that administrative issue exhaustion for constitutional claims raises serious Article III and due process concerns would have far-reaching implications. As issue exhaustion is not required in this case by statute, the reasoning of the Court’s decision will impact all situations where a statute is silent and where the federal government, and potentially a state government or local government, attempts to shut the courtroom doors to individuals who did not raise their constitutional claims before an administrative body with no power to remedy the alleged deficiency. It could be even broader than that. The Supreme Court should, at least, take this chance to note these concerns and caution the lower courts so that individuals are not unnecessarily deprived of their day in court.