Latest EO changes the way agency judges are selected

President Trump has issued an executive order that eliminates the testing process for administrative law judges at federal agencies, making it easier for the administration to have influence over the process of hiring judges.

ALJs are appointed by agencies to conduct proceedings, and are called on to discharge duties and exercise discretion in taking testimony when ruling on the admissibility of evidence and enforcing compliance of U.S. law.

“ALJs must display appropriate temperament, legal acumen, impartiality, and sound judgment, the July 10 order states. “The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve.  Given this expanding responsibility for important agency adjudications, and as recognized by the [Supreme Court ruling in ‘Lucia v. Securities and Exchange Commission’] that at least some—and perhaps all—ALJs are ‘Officers of the United States’ and thus subject to the Constitution’s Appointments Clause, which governs who may appoint such officials.”

Previously, ALJ appointees underwent a competitive examination and competitive service selection procedures, but the EO removes them from competitive service, meaning that agency leaders appointed by the president can now appoint judges without competitive examination and selection procedures.

The EO concludes that because ALJs are officers and not mere employees, their appointments must comply with the Constitution’s Appointments Clause.

View the full order here.

Reader comments

Thu, Jul 12, 2018

Any decent ALJ will likely leave after getting a year or two experience to make real money on the other side of the table. The EO will have little effect on the current situation due to the quick turnover.

Thu, Jul 12, 2018 Puregoldj Bethesda, MD

So, let's see... Trump would be able to appoint ALJs to decide if CBP or ICE taking children away from people applying for asylum is legal; or if the EPA would actually have to enforce clean air or clean water rules; or if agencies can violate labor laws... Gee, what could possibly be the problem?!?

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