Federal administrative law judges will be hired directly by individual agencies, rather than from a central pool of candidates, under an executive order issued Tuesday by President Trump.
The order, which effectively also gives agencies more leeway in deciding the qualifications they want in those decision-makers, is a response to a recent U.S. Supreme Court decision upholding a challenge to the authority of an administrative law judge based on how government hires for those positions.
Administrative law judges (ALJs) conduct trial-like hearings within federal agencies in disputes over decisions such as claims for benefits and enforcement actions against individuals or businesses. Although they are federal employees and most civil service rules apply to them, they are independent in their decision-making. There are about 1,900 government-wide, all but about 300 at the Social Security Administration.
While individual agencies generally post their job vacancies and then assess and select candidates, they hire ALJs from a central list of applicants the Office of Personnel Management deems qualified. The OPM opens that list for new applications only occasionally, most recently nearly a year ago.
The high court held last month that administrative law judges are “inferior officers” of the United States, as opposed to ordinary employees, and thus can be hired — in government parlance, “appointed” — only by the president or the head of an agency. It held that a Securities and Exchange Commission ALJ was appointed improperly and therefore was not authorized to decide in the case, which involved a penalty against an investment adviser.
That decision opens the door to similar challenges across all agencies since their ALJs were selected in the same way, often by a lower-level official who had relatively little choice of candidates from the list, said James Sherk, special assistant to the president for domestic policy.
In a conference call with reporters Tuesday, Sherk said that hundreds of such challenges have been brought, dating to when the high court agreed to hear the case, and if successful could similarly require that the ALJ decisions be reconsidered.
“This is something we’re already seeing. . . . What we’re trying to do is protect agencies against challenges to the legitimacy of their ALJs,” he said.
Under the order, ALJs will be designated “excepted service” employees and will be hired in much the same way as for other positions with that designation, such as attorneys. “It’s a different process for hiring ALJs but it’s a process that agencies should be familiar with,” Sherk said.
A White House fact sheet adds “agencies will be free to select from the best candidates who embody the appropriate temperament, legal acumen, impartiality, and judgment required of an ALJ, and who meet the other needs of the agencies.”
However, Rep. Richard Neal (Mass.), ranking Democrat on the House Ways and Means Committee, raised the prospect of politically motivated hiring for those positions.
“Impartiality plays a central role in administrative law judges’ work. Allowing the appointment of judges who are big campaign donors, beholden to industry, or otherwise unqualified will result in unfair, biased rulings that harm ordinary Americans,” he said in a statement.
The American Constitution Society, a progressive legal organization, said the change “could have a stunning impact on how myriad administrative claims are handled. Political appointment could, for example, lead to more administrative law judges with pro-corporate anti-worker biases,” its president, Caroline Fredrickson, said in a statement.
The order does not affect the employment status of current ALJs, Sherk said, although agencies might want to protect themselves against challenges by having the agency head certify their appointment. The order further does not alter disciplinary or other employment policies for ALJs and “is not going to affect ALJs’ decisional independence once they are appointed,” he said.
Nor does it apply to hiring of immigration judges or other agency-level hearing officers who in some contexts are generically referred to as administrative law judges, even though that term applies only to a specific set of decision-makers, he said.