On July 10, the White House issued an executive order giving agency heads the authority to select their own ALJs. Instead of having the OPM create a central list of qualified candidates, agencies can now design their own hiring protocols. This has given rise to concerns that political appointees will pick like-minded ALJs to better serve their agendas. One can envisage an anti-welfare Social Security chief selecting an ALJ who is skeptical of benefits claims, or a pro-union National Labor Relations Board chairman appointing someone who has championed workers’ demands, to name just a couple of potentially fraught appointments.
The executive order also waters down the qualifications needed to become an ALJ. Previously, candidates for these positions needed to have at least seven years’ experience, pass written and oral examinations, and appear before a panel of OPM staff and volunteer lawyers recommended by the American Bar Association. Now, the only credentials necessary are to “possess a professional license to practice law and be authorized to practice law,” opening the door to candidates with no litigation experience whatsoever.
Worse, the executive order dismantled regulations that limited the removal of these judges. While there are still statutes in place curbing at-will removals of ALJs, the deregulation — coupled with administration attempts to get the Supreme Court to weaken the statutory protections — has heightened fears of politically motivated hiring and firing.
The court’s ruling in June made it clear that the appointment process for ALJs needed to change. But the executive order does far more than fix an inefficient and potentially unconstitutional process. It threatens the independence and professionalism of those charged with overseeing thousands of administrative decisions a year.
In response to the executive order, Reps. Elijah E. Cummings (D-Md.) and Gerald E. Connolly (D-Va.) have requested a House Oversight and Government Reform Committee or subcommittee hearing to explore alternative appointment processes for ALJs. Democratic representatives have unsuccessfully tried to block federal funding toward implementing the order, but Congress can still set minimum standards for these positions and take steps to preserve their independence. This may be the only way left to prevent the politicization of what used to be a proudly nonpartisan position.
There is value in having a cohort of qualified, impartial arbitrators working on administrative disputes. With its executive order, the White House has put that system in jeopardy.