President Trump signed an executive order moving the hiring of administrative law judges from the competitive service to excepted service, giving the president and agency heads broader latitude in appointments.
The order cites the Supreme Court decision Lucia v. Securities and Exchange Commission, where the court found that SEC administrative law judges are “inferior officers” under the Constitution and therefore are subject to the Appointments Clause. It pulls ALJ’s out of the competitive service where they are vetted by the Office of Personnel Management, and into a more traditional appointment process.
James Sherk, special assistant to the president for domestic policy, says this order ensures ALJ’s have the requisite authority to do their jobs without of appeal of their decisions based on how they were hired.
“This ruling potentially implicates the authority of ALJ’s across government, who have very similar degrees of authority at other agencies,” Sherk said. “[There] is now uncertainty over whether binding rulings [from ALJ’s] can continue enforcement of the many different agencies across government. The executive order issued today addresses that uncertainty and ensures that they are hired in a manner consistent with the Appointment’s Clause.”
The new system will grant ALJ’s their own schedule E appointment structure and would do away with the current system of OPM providing agencies with a “list of 3” qualified candidates. Instead, it will allow agency heads to hire judges much like they already hire all federal attorneys.
“Now there will be a requirement that the candidates must have a valid Bar license or equivalent—in some states you can’t be a member of the Bar if you’re an active judge, so you can be an active judge—but beyond that, agencies can set their own qualifications or criteria,” Sherk said. “[This] does not affect the status of incumbent ALJ’s although agency heads can ratify existing judges under the new rules to reduce litigation risk.”
The order changes how judges are hired, not the merit systems principles that allow them to be independent and impartial once they’re hired.
“There are statutory procedures governing how ALJ’s are removed, and we’re not touching that; that’s not on the table,” he said. “Congress set out procedures in law to protect them and provide them with decisional independence, and this executive order cannot and should not change that.”
According to OPM, most of the 1,900 ALJ’s work for the Social Security Administration. OPM Director Jeff Pon said the executive order “safeguards the efficiency of administrative courts”.
“By reducing legal uncertainty surrounding ALJ appointment and improving the efficiency of the process, the order will help agencies more effectively enforce laws that protect the American people,” Pon said. “This change addresses potential constitutional concerns with the ALJ appointment process without affecting ALJ’s decisional independence after they’re appointed.”
In another executive order, Trump provided an exception from competitive service hiring rules for the appointment of criminal investigators and deputy U.S. Marshals in the U.S. Marshals Service, which the White House said is needed “to better hire and retain qualified individuals in certain duty locations.”