President Trump’s latest action upsetting the established order of the federal workforce has spawned a bevy of accusations that his move could politicize the administrative judiciary.
Although ALJs are a small fraction of the federal workforce, about 2,000 of 2 million employees, their impact is great for taxpayers fighting Uncle Sam. Approximately 1,600 judges at Social Security oversaw almost 700,000 cases last year. The Supreme Court once called Social Security “probably the largest adjudicative agency in the Western world.”
The White House made the change Tuesday, citing a June Supreme Court decision that said a Securities and Exchange Commission judge lacked authority after not being properly appointed.
“We’re already aware of hundreds of these challenges being brought to ALJs in different agencies besides the SEC,” James Sherk, special assistant to the president for domestic policy, told reporters. “Once the Supreme Court announced they were going to hear the case, a lot of lawyers began making the argument on behalf of their client that the ALJ hearing in my case isn’t properly appointed. So, this is something we’re already seeing in many places, and we’re trying to basically give the agencies greater certainty and reduce [the] litigation risk that they might have hundreds or more of these cases to redo and create a massive backlog.”
With that greater certainty also comes greater leeway to hire those with scant qualifications.
The only requirement for ALJs in the executive order is that they “possess a professional license to practice law and be authorized to practice law.” In other words, any lawyer “that walked by on the street,” regardless of qualifications, could be hired as an ALJ, said J. Jeremiah Mahoney, past president of the Federal Administrative Law Judges Conference.
Until this week, lawyers needed seven years’ experience and were centrally vetted through the Office of Personnel Management (OPM) before they could be administrative law judges. With agency heads now allowed to hire minimally qualified lawyers as judges, the appearance and the risk of ALJ favoritism and politicization is too great, leaders of judicial organizations agree. The order does not change statutory firing procedures, which Sherk said are “designed to protect decisional independence of the ALJs once they are appointed.”
John Palguta, a civil service expert who previously worked for the Merit Systems Protection Board and the OPM, said the order should not pose a problem if agencies act “in a responsible manner.”
“My only caveat,” he said, “is that there needs to be clear direction and oversight from OPM to assure that no department or agency abuses this authority by violating the merit system principles or committing a prohibited personnel practice.”
The potential for abuse is just what ALJs fear.
Calling the order “a court-packing plan” and “the equivalent of placing a thumb on the scale of justice,” Marilyn Zahm, president of the Association of Administrative Law Judges, said “they are removing hiring based on merit and replacing it with a system that could lead to abuse and biased decisions.”
Sherk noted that federal attorneys also are hired by agencies outside of competitive procedures. “This process gives agency heads a greater flexibility and responsibility for ALJ appointments,” he said, “and is very, very similar to the process under which federal attorneys are currently hired.”
But what is not similar is the responsibility of agency lawyers and judges. Lawyers are hired as advocates for their agencies. ALJs, however, are charged as impartial arbiters of agency disputes.
Democrats decried Trump’s executive order. It opens “the door to mass politicization of a profession that plays a defining role in the lives of millions of American families,” said a statement from Reps. Robert C. “Bobby” Scott (Va.), Education and the Workforce Committee ranking Democrat; Elijah E. Cummings (Md.), Oversight and Government Reform Committee ranking Democrat; and David N. Cicilline (R.I.), co-chair of the Democratic Policy and Communications Committee.
“When Americans bring disputes before the federal government — whether it’s related to workplace discrimination, protected organizing activities or eligibility for Social Security or Medicare benefits — they are entitled to have their cases heard by qualified, independent and impartial ALJs,” they added. “This executive order strips away those basic standards and allows the Trump administration to hand these judicial appointments to friends and political allies who share their ideologies.”
They are seeking to block funds “to implement this misguided executive order.”
Separately, Rep. Richard E. Neal (D-Mass.), the ranking Democrat on the Ways and Means Committee, said the executive order “will allow the president to appoint federal Administrative Law Judges (ALJs) on the basis of ideology and political orientation, rather than through a competitive examination process based on merit, neutrality and fitness for office.”
Trump also issued an executive order excluding deputy U.S. marshals and criminal investigators from competitive hiring, “as it is impracticable to hold open competition or to apply usual competitive examining procedures for those positions related to federal law enforcement.”
The Federal Law Enforcement Officers Association said it supports that executive order because it allows “targeted recruitment in hard to fill areas.”
He said the executive order on marshals “is part of a much broader campaign — drip by drip, President Trump is using executive orders to dismantle the nonpartisan civil service, the rights of workers to bargain collectively, the impartial Administrative Law Judge corps, and now the dedicated U.S. Marshals Service.”