Under the Radar: Examining Trump’s Executive Order on Administrative Law Judges

By Robert A. Vella

Two days ago, President Trump issued an executive order on administrative law judges (a.k.a. ALJs).  The move is rather esoteric and is therefore likely to fly under the radar of most observers who presumably have bigger fish to fry.  However, it could have very serious consequences because Trump has shown an authoritarian tendency to consolidate his executive power at the expense of civil service and judicial independence.

Many thanks to The Pink Agendist for bringing this story to my attention.

From:  Wikipedia

An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates the claims or disputes (in other words, ALJ-controlled proceedings are bench trials) involving administrative law.

ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations.^[1] And depending upon the agency’s jurisdiction, proceedings may have complex multi-party adjudication, as is the case with the Federal Energy Regulatory Commission, or simplified and less formal procedures, as is the case with the Social Security Administration.

The Administrative Procedure Act of 1946 (APA) requires that federal ALJs be appointed based on scores achieved in a comprehensive testing procedure, including a four-hour written examination and an oral examination before a panel that includes an Office of Personnel Management representative, an American Bar Association representative, and a sitting federal ALJ. Federal ALJs are the only merit-based judicial corps in the United States.^[2]

In American administrative law, ALJs are Article I judges under the U.S. Constitution. As such, they do not exercise full judicial power, essentially, the power over life, liberty, and property. However, Article I judges and courts are not constrained to rendering opinions for only a “case or controversy” before them, and may render advisory opinions on a purely prospective basis, such as, e.g., Congressional reference cases assigned to the Court of Federal Claims. Agency ALJs do not have the power to offer such advisory opinions, as it would be in violation of the power afforded them under the Administrative Procedures Act, 5 U.S.C. §557. Unlike the agency, ALJs are not policy or rule makers.

ALJs are generally considered to be part of the executive branch, not the judicial branch, but the APA is designed to guarantee the decisional independence of ALJs. They have absolute immunity from liability for their judicial acts and are triers of fact “insulated from political influence”.^{[citation needed]} Federal administrative law judges are not responsible to, or subject to, the supervision or direction of employees or agents of the federal agency engaged in the performance of investigative or prosecution functions for the agency. Ex parte communications are prohibited. ALJs are exempt from performance ratings, evaluation, and bonuses. 5 CFR 930.206. Agency officials may not interfere with their decision making, and administrative law judges may be discharged only for good cause based upon a complaint filed by the agency with the Merit Systems Protection Board established and determined after an APA hearing on the record before an MSPB ALJ.^[3] Only ALJs receive these statutory protections; “hearing officers” or “trial examiners”, with delegated hearing functions, are not similarly protected by the APA.

In Lucia v. SEC, decided in June 2018, the United States Supreme Court held that ALJs are Inferior Officers within the meaning of the Appointments Clause of the United States Constitution.^[4]

From:  The Washington Post

Federal administrative law judges will be hired directly by individual agencies, rather than from a central pool of candidates, under an executive order issued Tuesday by President Trump.

The order, which effectively also gives agencies more leeway in deciding the qualifications they want in those decision-makers, is a response to a recent U.S. Supreme Court decision upholding a challenge to the authority of an administrative law judge based on how government hires for those positions.

[…]

The high court held last month that administrative law judges are “inferior officers” of the United States, as opposed to ordinary employees, and thus can be hired — in government parlance, “appointed” — only by the president or the head of an agency. It held that a Securities and Exchange Commission ALJ was appointed improperly and therefore was not authorized to decide in the case, which involved a penalty against an investment adviser.

That decision opens the door to similar challenges across all agencies since their ALJs were selected in the same way, often by a lower-level official who had relatively little choice of candidates from the list, said James Sherk, special assistant to the president for domestic policy.

In a conference call with reporters Tuesday, Sherk said that hundreds of such challenges have been brought, dating to when the high court agreed to hear the case, and if successful could similarly require that the ALJ decisions be reconsidered.

From:  Beltway Breakfast

WASHINGTON, July 11, 2018 — A veteran Administrative Law Judge says President Trump’s new executive order governing the hiring of ALJs could mean the end for many Americans’ right to have disputes against the government heard by a neutral arbiter.

The July 10 order, entitled “Excepting Administrative Law Judges From The Competitive Service,” puts an end to the system of selecting ALJs by their performance on a competitive examination and exempts them from the civil service protections to which they’ve long been entitled.

[…]

A White House official told BeltwayBreakfast that any new judges hired under the new order would have statutory protections under the Administrative Procedure Act, the order specifically exempts them from civil service regulations.

But in an interview with BeltwayBreakfast, the veteran Administrative Law Judge, who hears cases at the Social Security Administration and has been active in the Association of Administrative Law Judges — the federal ALJ union — for many years, called the order a completely unnecessary assault on Americans’ right to due process.

BeltwayBreakfast is not naming the judge at his or her request because he or she was not speaking on behalf of the ALJ union and because he or she fears the Trump administration would retaliate against him or her for speaking to the press.

“[Trump] didn’t have to do any of this. This is all bogus, and it’s to take control over the judiciary,” said the judge. “This is a total assault on due process for the American people.”