A pair of senators is looking to reverse a recent executive order issued by President Trump to remove administrative law judges from the competitive service, which critics have warned could strip the executive branch employees of their independence.
President Trump in July issued an executive order that would allow agency heads to pick whomever they wish to be administrative law judges, provided they are active lawyers or judges. Previously, the Office of Personnel Management independently vetted candidates, and then submitted to agencies a short list of potential names.
The new bill, introduced by Sens. Maria Cantwell, D-Wash, and Susan Collins, R-Maine, would restore the government’s 1,900 ALJs—most of whom work for the Social Security Administration—to the competitive service. The reversion would ensure OPM makes hiring recommendations based on “qualifications and competence,” the senators said, rather than any arbitrary justification political appointees choose.
“Administrative law judges make decisions every day that affect people’s lives like Social Security and Medicare benefits, workers’ compensation claims, and even licenses for radio stations and nuclear power plants,” Cantwell said. “We must ensure these judges are fair, impartial, and qualified.”
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The White House argued in issuing the the order that a recent Supreme Court decision, Lucia v. Securities and Exchange Commission, required the changes. The court ruled that ALJs are “inferior officers” under the Constitution and are therefore subject to the Appointments Clause.
“This ruling potentially implicates the authority of ALJs across government, who have very similar degrees of authority at other agencies,” James Sherk, special assistant to the president for domestic policy, said when Trump signed the order. “[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.”
The Association of Administrative Law Judges disagreed, however, with its president, Marilyn Zahm, saying Lucia was a narrow decision. Instead, Zahm suggested the real intent of the order was to give agency heads broad authority to select ideological judges. She suggested, as an example, an administration could select judges less likely to approve Social Security disability claims.
The Congressional Research Service, meanwhile, has suggested that the Trump administration could be limited by the Administrative Procedure Act or the Civil Service Reform Act in actually carrying out the order.
Collins and Cantwell said they had tackled the Lucia issue by including in their bill a provision to require an agency head, rather than “lower-agency officials,” to make the final appointment after receiving recommendations from OPM.
“Administrative law judges are tasked with making important decisions every day, they are intensely vetted and put through a competitive application process before being hired,” Collins said. “Our bipartisan legislation would ensure that administrative law judges remain well qualified and impartial, while this crucial process remains nonpartisan and fair.”
The bill’s introduction follows a call from Democrats on the House Oversight and Government Reform Committee to hold a hearing on the order. They said the change would give agency leaders “unlimited discretion to stack the ALJ corps with partisan individuals.”
Trump is becoming accustomed to pushback on his attempts to unilaterally reshape the civil service. A judge last week overturned many of the key provisions of a series of executive orders the president signed earlier this year to limit union power and make it easier to fire federal employees.