President Signs Executive Order Regarding Administrative Law Judges

In the wake of the U.S. Supreme Court’s recent Lucia decision, President Trump yesterday signed an executive order affecting the future hiring process for all federal administrative law judges (ALJs), the largest group of which preside over disability hearings for the Social Security Administration.

The executive order cites Lucia as the basis for moving the hiring of ALJs from the current competitive examination and selection procedure through the Office of Personnel Management (OPM) into the excepted service category. The action creates a new “schedule E” category for these positions. This would give the President and agency heads broader latitude in making appointments, and essentially mirror the process used to hire all federal attorneys. Current ALJs hired under the competitive process will not be affected.

The White House also released a Fact Sheet pertaining to the executive order stating that the “logic of Lucia casts doubt on the validity of many – if not all – ALJ appointments within the Federal Government.” Lucia declared ALJs at the U.S. Securities and Exchange Commission were subject to the U.S. Constitution’s Appointment Clause based on the duties of the position. Yesterday’s release states that as a basis for expanding the application of Lucia to other federal agencies, “Any ongoing legal uncertainty over ALJ appointments and authority could hinder the enforcement of dozens of important laws protecting Americans.”

The Fact Sheet claims “This order is an important step in preempting arguments going forward that ALJs have been unconstitutionally selected and that their decisions should be overturned.”

Regarding concerns over the preservation of judicial independence, the Fact Sheet states “This order addresses potential constitutional concerns with the ALJ appointment process without affecting new ALJs’ decisional independence after they are appointed or altering the status of incumbent ALJs.”

Some organizations, such as the National Organization of Social Security Claimants’ Representatives (NOSSCR), have cited concerns that the change could affect the judicial independence of newly hired ALJs. While other sources have stated the emphasis is on protecting the enforcement of binding rulings, and does not have any implications for Congress’ intent to ensure ALJ decisional independence.

The order also directs the OPM to adopt regulations to implement the order and provide guidance toward “a swift, orderly transition” from the current appointment process to the Schedule E process.