White House officials said the change will not affect the judges' protections against removal.
The White House announced Tuesday that President Trump has signed an executive order moving the hiring of administrative law judges from the competitive service into the excepted service, giving the president and agency heads broader latitude in appointments.
The order cites the recent Supreme Court decision Lucia v. Securities and Exchange Commission, in which the court found SEC administrative law judges are considered “inferior officers” under the Constitution and, as such, are subject to the Appointments Clause. It pulls administrative law judges 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, said the executive order ensures that administrative law judges have the requisite authority to do their jobs without fear of appeal of their decisions based on how they were hired.
“This ruling potentially implicates the authority of ALJs across government, who have very similar degrees of authority at other agencies,” Sherk said. “[There] is now uncertainty over whether binding rulings [from ALJs] can continue enforcement of the many different laws enforced by 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 Appointments Clause.”
Sherk said that since the Supreme Court elected to hear Lucia, “hundreds” of people appealed cases adjudicated by administrative law judges, arguing that they were improperly appointed. The new system, which will grant administrative law judges their own Schedule E appointment structure, would do away with the current system of OPM providing agencies with a “list of three” qualified candidates and instead 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 ALJs, although agency heads can ratify existing judges under the new rules to reduce litigation risk.”
Although the order changes how administrative law judges are hired, it does not change the merit systems principles that allow them to be independent and impartial once they are hired, without fear of reprisal from managers, Sherk said.
“There are statutorial procedures governing how ALJs 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, the vast majority of the nearly 1,900 administrative law judges work for the Social Security Administration. In a statement, OPM Director Jeff Pon said the executive order “safeguards the efficiency of administrative courts.”
“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,” Pon said. “This change addresses potential constitutional concerns with the ALJ appointment process without affecting ALJ’s decisional independence after they are appointed.”
In a separate executive order, the Trump administration provided an exception from competitive service hiring rules for the appointment of criminal investigators and deputy U.S. marshals within the U.S. Marshals Service, which the White House said is needed “to better hire and retain qualified individuals in certain duty locations.”