President Donald Trump on Tuesday signed an executive order eliminating the exam and competitive hiring process for administrative law judges.
The order gives agency chiefs the power to hire administrative law judges according to their own standards. The process will be similar to the way agencies hire executive branch attorneys, according to a press release. Politico, GovExec, NPR and the Washington Post have stories.
About 1,900 administrative law judges work for the federal government, and all but about 300 of them work for the Social Security Administration, according to the Post
James Sherk, special assistant to the president for domestic policy, said the only across-the-board requirement is a valid bar license or, in states where judges aren’t members of the bar, status as an active state judge, according to GovExec. “Beyond that, agencies can set their own qualifications or criteria,” he said.
After their hiring, administrative law judges will still be protected by statutory procedures governing removals, principles that protect independence, Sherk said. He also said the order does not affect the status of current ALJs, though agency chiefs can ratify existing judges to reduce litigation risk stemming from a June Supreme Court decision, Lucia v. Securities and Exchange Commission.
Trump’s order said the recent Supreme Court decision had raised questions about the constitutionality of the selection process for administrative law judges. In Lucia, the court ruled that administrative law judges at the Securities and Exchange Commission were officers of the United States under the appointments clause. As a result, the court said, they must be appointed by the president, courts or the heads of federal agencies.
Even if the procedures for selecting administrative law judges are compatible with agency discretion required in Lucia, the executive order said, there “are sound policy reasons to take steps to eliminate doubt.”
Trump’s order said it gives agencies “greater ability and discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency.” Agencies should be able to assess administrative law judge candidates “without proceeding through complicated and elaborate examination processes or rating procedures that do not necessarily reflect the agency’s particular needs,” the order said.
Sherk said hundreds of cases have been appealed by litigants who claim their cases were heard by judges who weren’t properly appointed.
University of Texas law professor Stephen Vladeck told NPR that the executive order “takes a very modest decision from the Supreme Court” to change the executive branch judges “from somewhat independent civil servants into politically appointed and politically removable bureaucrats.”
“The real concern becomes that you’re going to have administrative law judges in these agencies who are either there because they’re deeply sympathetic to the regulated industries, or because they’re deeply hostile to the regulated industries,” Vladeck said. “Either way you lose the veneer of independent adjudication on which so much of the modern administrative state rests.”
This may seem wonky, but it is a very big deal—and could have a major impact on how tons of administrative claims are handled, especially if opening the door to political appointments leads to more ALJs with clear sympathies (or hostilities) toward the regulated industries… https://t.co/z96OPStz7U
— Steve Vladeck (@steve_vladeck) July 10, 2018