A new bill would overrule a 2018 Trump executive order seen by administrative law judges as an effort to politicize their positions.
A bipartisan group of House lawmakers introduced a bill Wednesday that would bring administrative law judges back into the competitive service, overriding an executive order signed by President Trump last year.
Last August, Trump signed an executive order moving administrative law judges from the competitive service into the excepted service, giving the president and agency heads much broader latitude in potential judges’ qualifications and appointment.
Prior to the executive order, prospective administrative law judges had to go through a vetting process that included a written exam, peer references and panel interview. The executive order, by contrast, only requires a candidate to be a lawyer.
The White House justified the initiative as a response to the Supreme Court decision Lucia v. Securities and Exchange Commission, which found that ALJs are “inferior officers” under the Constitution and thus subject to its appointments clause.
But legal scholars have disputed this rationale, noting that the vast majority of the federal government’s 19,000 administrative law judges perform duties that would not fall within the scope of the Supreme Court’s decision. The Association of Administrative Law Judges described Lucia as an “excuse” to take control over the hiring process and thereby politicize the administrative law judge corps.
Last year, the Congressional Research Service questioned the legality of the order, concluding that although the president likely has the authority to remove portions of the federal workforce from the competitive service, individual agencies likely would have to follow the Administrative Procedures Act’s rulemaking procedures in order to implement the plan.
The ALJ Competitive Service Restoration Act (H.R. 2429) would effectively revert the legal status of the administrative law judge corps to before the issuance of the executive order pulling them out of the competitive service. It amends Title 5 of the U.S. Code to stipulate that ALJs must be hired using the rules that govern the competitive service, as well as the process whereby agencies were required to choose judges from a list of candidates vetted by the Office of Personnel Management.
Among the bill’s sponsors are Reps. Elijah Cummings, D-Md.; Brian Fitzpatrick, R-Pa.; Richard Neal, D-Mass.; Rodney Davis, R-Ill.; Gerry Connolly, D-Va.; Danny Davis, D-Ill.; Bobby Scott, D-Va.; John Larson, D-Conn.; and Tom Cole, R-Okla. In a joint statement, they stressed the importance of preserving the independence of administrative law judges and protecting them from partisan hiring practices.
“[ALJs’] decisions have a significant impact on [Americans’] Social Security, Medicare, workers’ compensation and veterans’ benefits, as well as claims of discrimination, unfair labor practices and securities fraud,” they said. “Lives would be disrupted if independent adjudicators were replaced by partisan judges whose appointments were based on politics. Congress would not be fulfilling its constitutional duty of oversight if it allowed the politicization of the corps of independent adjudicators who are responsible for protecting the due process rights of the American people.”
The bill also has the endorsement of the Association of Administrative Law Judges and the Federal Workers Alliance.
“We believe the public deserves a well-qualified, impartial administrative judiciary removed from political pressure,” said AALJ President Melissa McIntosh. “Decisions about whether someone is eligible or not for a disability claim must be free of partisanship.”