President Changes Administrative Law Judge Hiring Process

(CN) – President Donald Trump changed the appointment process for administrative law judges on Tuesday with an executive order that puts the power with federal agency heads or the president himself.

Issued as he flew to the NATO summit in Brussels, the order follows a U.S. Supreme Court decision in June that decided administrative law judges of the Securities and Exchange Commission are subject to the Appointments Clause of the U.S. Constitution.

In the Lucia v. Securities and Exchange Commission, the justices held the administrative law judge who handed down a fine on an investor was not constitutionally appointed.

The ruling put in doubt the constitutionality of other administrative law judges and opened up potentially thousands of cases to be re-litigated.

Trump’s order expands on the high court’s ruling and gives all agency heads the authority to appoint the judges, who deal with benefits claims and enforcing regulations.

There are 1,900 administrative law judges in the federal government. Most belong to the Social Security Administration.

The White House framed the executive order as a solution to “ongoing legal uncertainty over administrative law judge appointments and authority” and allowing “the enforcement of dozens of important laws protecting Americans.

The order also serves as an “important step in preempting arguments going forward that administrative law judges have been unconstitutionally selected and that their decisions should be overturned.”

The decision does not impact the status of incumbent judges, the order notes.

Previously, the Office of Personnel Management vetted candidates and administered written and oral examinations. Then, a panel – typically made up of a current administrative law judge, a member of the American Bar Association and OPM staff – hired the judge.

However, the Lucia decision deemed the judges as “officers of the United States” and not just employees of the federal government, which makes them subject to appointment by agency directors or the president.

“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,” a White House memo stated.

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