Catholic University Law Review


The Trump-era unitary executive movement sought to expand presidential

power and shrink the influence of the administrative state through deregulation.

This movement ripples into the present moment, as Trump’s overhaul of the

federal judiciary installed a comprehensive system to delegitimize

administrative agency action— a system that is certain to endure. The

independence and role of administrative law judges (ALJs) has proven a key

target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities

and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause

removal protections of SEC ALJs violated the Take Care Clause of Article II of

the Constitution. This Comment argues that the Constitution sets out a

functional inquiry for evaluating the removability of officials in the Take Care

Clause, as opposed to the categorical inquiry erroneously adopted by the Fifth

Circuit. If upheld by the Supreme Court, Jarkesy and the curtailment of ALJ

independence will have a profound impact on not only the SEC, but all agencies,

and the very fate of the administrative state.