Changing the Way ALJs are Appointed?

The President signed an Executive Order on July 10, 2018. Executive Order Excepting Administrative Law Judges from the Competitive Service references the recent Supreme Court decision Lucia v. Securities and Exchange Commission.

The Executive Order contains this explanation:

Previously, appointments to the position of ALJ have been made through competitive examination and competitive service selection procedures.  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 in Lucia, 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.

As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive service selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs.  Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.

The executive order, as noted in its title, makes "an exception to the competitive hiring rules and examinations for the position of ALJ" due to "conditions of good administration." The Executive Order amends 5 C.F.R. 6.2, 6.3(b), 6.4 and 6.8. To read more, click here.