Legislation that was recently introduced in the Senate would restore Administrative Law Judges (ALJs) to competitive service, effectively reversing an executive order that President Trump issued earlier this year.
Under Trump’s executive order, ALJs were excepted from competitive service, meaning that they can be appointed by agency heads without going through competitive selection and examination procedures. His executive order was issued as the result of a Supreme Court decision, Lucia v. Securities and Exchange Commission, which questioned whether an ALJ had been properly appointed in accordance with the Constitution’s “Appointments Clause.”
According to the Office of Personnel Management (OPM), the changes made by the executive order gave agencies more flexibility. “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,” said an OPM press release.
Senators Maria Cantwell (D-WA) and Susan Collins (R-ME) do not think the executive order changing the ALJ selection process was a good idea.
A press release on their new bill says that politics will become too much a part of the ALJ selection process:
Previously each agency hired its own administrative law judges from a list of qualified candidates provided by the Office of Personnel Management. However, at the end of July, President Trump issued an executive order to reclassify administrative law judges, which could allow for these judges to be selected on the basis of their political views rather than my their qualifications, merit, and independence.
The recently introduced legislation (S. 3387) would restore ALJs to the competitive service and roll back the changes made by the executive order.
According to a press release issued by Cantwell, “This competitive process ensures that administrative law judges are selected on their qualifications and competence, rather than political appointees who can use whatever criteria they want.”
“Administrative law judges are tasked with making important decisions every day, they are intensely vetted and put through a competitive application process before being hired,” said Senator Collins. “Our bipartisan legislation would ensure that administrative law judges remain well qualified and impartial, while this crucial process remains nonpartisan and fair.”
As an aside, the bill is given a 5% chance of passing into law at the time of this writing according to GovTrack.