This story has been updated to include comments from the Association of Administrative Law Judges.
President Donald Trump signed an executive order July 10 to except administrative law judges from the competitive service, meaning that agency leadership can appoint judges without competitive examination and selection procedures.
Administrative law judges are appointed in a variety of federal agencies to serve as impartial figures in formal proceedings requiring a decision on the record, such as in issues concerning environmental protection, immigration, labor management relations and more.
The order is based on a June 21 Supreme Court ruling in “Lucia v. Securities and Exchange Commission” that ALJs are “officers of the United States” and therefore subject to the Constitution’s Appointment’s Clause.
“The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve. Given this expanding responsibility for important agency adjudications, and as recognized by the Supreme Court in ‘Lucia,’ at least some and perhaps all ALJs are ‘Officers of the United States’ and thus subject to the Constitution’s Appointments Clause, which governs who may appoint such officials,” Trump wrote in the executive order.
“Placing the position of ALJ in the excepted service will mitigate concerns about undue limitations on the selection of ALJs, reduce the likelihood of successful Appointments Clause challenges, and forestall litigation in which such concerns have been or might be raised.”
Placing administrative law judges under the excepted service also allows agencies to move past “complicated and elaborate examination procedures or rating procedures” that don’t necessarily reflect the actual needs of the agency, according to the order.
The order requires the Office of Personnel Management to list administrative law judges as a new Schedule E of the Excepted Service, and therefore not subject to Civil Service Rules and Regulations regarding removals from positions.
“By reducing legal uncertainty surrounding ALJ appointments and improving the efficiency of the process, the order will help agencies more effectively enforce laws that protect the American people. This change addresses potential constitutional concerns with the ALJ appointment process without affecting ALJs’ decisional independence after they are appointed.” OPM Director Jeff Pon said in a news release. “It’s a change that has been necessary for quite some time.”
The Association of Administrative Law Judges, however, characterized the order as an attempt at court packing.
“This is an assault on due process for the American people who have a right to a neutral arbiter,”said AALJ President Marilyn Zahm in a news relase on the order. “The president’s order calls for replacing the current merit system used to hire judges with a court packing plan that will allow agency heads to hand pick judges who hear cases at the Social Security Administration and dozens of other federal agencies. This change will politicize our courts, lead to cronyism and replace independent and impartial adjudicators with those who do the bidding of political appointees. This is a decision that should be reversed. If allowed to go forward, it would be the equivalent of placing a thumb on the scale of justice.”
Jessie Bur covers the federal workforce and the changes most likely to impact government employees.