President Trump last year signed an executive order moving ALJs into the excepted service, claiming it was required to comply with a Supreme Court decision. But stakeholders argued it politicized the job.
A bipartisan group of senators on Wednesday reintroduced a bill that would place administrative law judges back in the competitive service, effectively overriding a 2018 executive order.
In July 2018, President Trump signed an executive order moving administrative law judges from the competitive service to the excepted service. At the time, the White House claimed it was necessary to comply with the Lucia v. SEC Supreme Court decision, which found that administrative law judges are “inferior officers” under the Constitution, limiting their authority.
The order shifted the method for hiring new administrative law judges. Previously, candidates' qualifications were vetted by the Office of Personnel Management before they were forwarded to agencies for final selection, but the order changed their selection to a more traditional presidential appointment process.
Lawmakers and groups representing administrative law judges have disputed the administration’s rationale, saying that the Lucia decision does not apply to the vast majority of the 1,900 administrative law judges across the federal government, and accused Trump of using the ruling as a pretext to politicize the ALJ corps.
On Wednesday, Sens. Maria Cantwell, D-Wash., and Susan Collins, R-Maine, reintroduced the ALJ Competitive Service Restoration Act (S. 2348) to reverse the Trump administration’s executive order and restore administrative law judges to the competitive service. The lawmakers first introduced the bill in August 2018, but Congress did not act on the measure.
In a joint statement, Cantwell and Collins said it is vitally important that the federal government protect administrative law judges from political and partisan influence, starting with their hiring process.
“Administrative law judges perform very important roles for Social Security and Medicare benefit cases, and it’s essential that they remain independent and not politically influenced in making decisions,” Cantwell said. “They should be knowledgeable about the subject area they’re overseeing and without any conflict of interest.”
“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 so that this crucial process remains nonpartisan and fair.”
Association of Administrative Law Judges President Melissa McIntosh applauded the lawmakers for advocating for administrative law judges’ independence. In recent weeks, her union accused the Social Security Administration of bad faith bargaining as judges and management have negotiated a new contract. In those negotiations, management negotiators have proposed eliminating contract provisions defining ALJs’ judicial function at the agency, as well as removing all references to the Administrative Procedures Act.
“The majority of ALJs in the federal sector work at the Social Security Administration and are represented by our association,” McIntosh said. “We are deeply committed to ensuring the due process rights of American citizens. This legislation preserves the independence of ALJs by restoring the rigorous and competitive selection of judges based solely on merit. Political influence has no place in our hearing rooms."