Thursday, August 2, 2018
We blogged last week about the July 10, 2018 executive order that exempted the hiring of ALJs from the competitive process used up until then. NPR and the Washington Post did stories about the impact of the executive order on the ALJ hiring process, offering to some extent, two competing views of the outcome.
In Trump moves to shield administrative law judge decisions in wake of high court ruling explains the process typically used by federal agencies: "[w]hile individual agencies generally post their job vacancies and then assess and select candidates, they hire ALJs from a central list of applicants the Office of Personnel Management deems qualified." Referencing the recent Supreme Court decision that held that an ALJ for the SEC was not correctly appointed, the ALJ "therefore was not authorized to decide in the case, which involved a penalty against an investment adviser. [Further] [t]hat 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" who indicated in an interview that a large number of challenges on that point have been filed and that the executive order will hopefully "protect agencies against challenges to the legitimacy of their ALJs." The article also discusses the potential for politically-based hiring decisions. It also notes that certain hearing offiers are called ALJs; but the executive order won't "apply to hiring of immigration judges or other agency-level hearing officers who in some contexts are generically referred to as administrative law judges...."
NPR's story, Trump Changes How Federal Agency In-House Judges Are Hired notes that the ALJs covered include Medicare. Focusing more on the potential political ramifications of the executive order which basically makes the ALJs political appointees, the NPR story quotes "the president of the American Constitution Society [who] in a statement specifically pointed to possible repercussions with the Social Security Administration. 'Administrative law judges handle Social Security disability cases. This administration is on record as wanting to lessen benefits. It's likely that a political ALJ appointed by this administration would rule against the beneficiaries and deny claims.'"