President Trump has issued an executive order that changes the process under which administrative law judges are hired, in response to a Supreme Court decision that cast some doubt over how those officers had previously been hired.
Administrative law judges were deemed by the Supreme Court to be “Officers of the United States” and must be appointed by the president, a court of law, or the head of the department. ALJs are used by a number of federal agencies, including the Bureau of Consumer Financial Protection. In many cases, the ALJs were hired by staff members within the agency and not by the head of the agency itself. For example, it is not publicly known whether former director Richard Cordray or someone else within the BCFP hired Christine Kirby to be the agency’s ALJ when Kirby was hired in 2015.
The executive order signed by President Trump earlier this week removes ALJs from the competitive service and moves them to the excepted service, which are subject to different hiring processes.
Placing the position of ALJ in the excepted service will mitigate concerns about undue limitations on the selection of ALJs, reduce the likelihood of successful Appointments Clause challenges, and forestall litigation in which such concerns have been or might be raised. This action will also give agencies greater ability and discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the significant authority conferred on ALJs, and each agency should be able to assess them without proceeding through complicated and elaborate examination processes or rating procedures that do not necessarily reflect the agency’s particular needs. This change will also promote confidence in, and the durability of, agency adjudications.
