On July 10, the White House released an executive order ending a merit-based system for selecting federal administrative law judges, including those who hear Social Security cases. This is a big switch. In a joint statement, Reps. David N. Cicilline (D-R.I.), Elijah E. Cummings (D-Md.) and Robert C. “Bobby” Scott (D-Va.) described it this way: “The executive order will allow the Administration to appoint judges based on politics and nepotism rather than competence.” In other words, this is an under-the-radar White House court-packing plan.
Federal administrative law judges have, until now, been shielded from agency pressures by a law dating to the 1940s called the Administrative Procedure Act, which created uniform standards for the conduct of adjudication in the administrative law courts.
About 1,600 of the roughly 2,000 federal administrative law judges hear Social Security cases. Other federal ALJs hear cases in more than 30 federal agencies on a wide range of legal issues, including matters involving stocks and bonds, mine safety and mail delivery.
Americans are far more likely during their lifetime to encounter an ALJ than any other type of federal judge. Last year alone, judges who adjudicate Social Security cases conducted 605,483 hearings, according to agency statistics. What sorts of cases are heard? You would face an ALJ if you had a problem with the dollar amount in your Social Security retirement account; if there were a question about who is eligible to receive a deceased person’s benefits; or if, because of a workplace accident, injury or illness, you found yourself unable to work and you applied for disability benefits.
In every instance, you would want to know that the judge hearing your case was both competent and impartial. When you have your day in court, you also want a judge who isn’t being pressured to deny your case for political reasons or wasn’t placed in the job because of whom they know rather than what they know.
Until this month, federal agencies hired ALJ candidates with at least seven years of litigation experience; they are also required to take a six-part examination conducted by the Office of Personnel Management. Now, as a result of the president’s executive order, an agency that wants to employ an ALJ can recruit any attorney regardless of skill or experience. Competence and impartiality apparently are no longer essential; cronyism and political interference will no longer be taboo.
The administration claims to have issued its executive order in response to the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission. The Lucia case overturned a decision by an administrative law judge at the SEC on a technicality, arguing that the judge had not been properly appointed.
In his public statements and in remarks to journalists, James Sherk, special assistant to the president for domestic policy, said that as a result of the ruling, the administration’s hands are tied. This is a specious rationale. After the ruling, many agencies, including the Labor Department and Centers for Medicare and Medicaid Services, had already taken steps to reappoint their judges to avoid any possible conflict. The executive order could have simply directed that “all agencies must reappoint their administrative law judges,” and that would have done the trick.
Instead, the administration is empowering bureaucrats and political appointees. There is no guarantee that they will act appropriately when filling judgeships without the guidance of the current merit system.
As recently as two years ago, the Social Security Administration — attempting to circumvent administrative law judges — tried to hire additional lawyers, call them “administrative appeals judges,” and then assign them to hear and decide cases. Unlike the ALJs, these “judges” would have lacked judicial independence from the agency that employed them. The agency almost got away with the gambit, but Sens. James Lankford (R-Okla.) and Heidi Heitkamp (D-N.D.) intervened, excoriating the plan during a Senate hearing.
The United States is a nation of laws. Citizens will be best served if their cases are heard by judges who are free from political influence, quotas or bias. If the White House does not reverse the order, Congress should block its implementation. After all, White House occupants change, but crippled justice has no expiration date.