In Lucia v. Securities and Exchange Commission (Supreme Court of the United States No. 17-130, decided June 21, 2018), the question before the court was whether an Administrative Law Judge (ALJ) of the Securities and Exchange Commission (SEC) had been properly appointed in accordance with the Constitution’s “Appointments Clause.” Under that provision, an officer of the United States could be appointed only by the President, “Courts of Law,” or “Heads of Departments.”
As a result of this decision, President Trump has issued an Executive Order entitled “Excepting Administrative Law Judges from the Competitive Service”.
The new Executive Order allows agency heads to directly hire ALJs without going through the OPM selection process. It creates a new excepted service “schedule E” for this purpose. In effect, it means that the head of an agency can appoint people into these positions without going through a competitive examination and selection procedures.
This process gives agency heads more responsibility for ALJ appointments. In a press release, OPM wrote: “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.”
The process is similar to how agencies now hire Federal lawyers.
According to OPM director Jeff T.H. Pon, “It’s a change that has been necessary for quite some time.”