Trump just made it easier for agency heads to pick judges who agree with his politics

The scales are tipped in the Trump administration’s favor.
The scales are tipped in the Trump administration’s favor.
Image: Reuters/Morteza Nikoubazl
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US president Donald Trump is busy changing the way the government works. On July 10, the commander-in-chief issued an executive order that eliminates the testing process for administrative law judges (ALJ) at federal agencies. Basically, the change will allow the administration to exert more influence over the process of hiring judges—and the subsequent decisions they’ll issue.

The order explains that, previously, ALJ appointees underwent a 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,” Trump says. Given “this expanding responsibility for important agency adjudications,”  the president has changed the process.

Now agency heads, who were appointed by Trump, will pick ALJs. That means department heads can install judges who agree with the president’s policies and his limited regulation stance, and they will in turn make rulings on matters at the Social Security Administration, National Labor Relations Board, the Department of Health and Human Services, and the Securities and Exchange Commission, among others. There are about 2,000 ALJs working across agencies now.

In the future, ALJs will still have to be licensed attorneys. But the new crop of ALJs won’t go through a centralized government hiring and exam process or be chosen by agency employees.

Ostensibly, the change is based on the June 21 US Supreme Court ruling in Lucia v. Securities and Exchange Commission (pdf). In that case, the high court found for Raymond Lucia, who was charged and found guilty of violating securities laws. He argued that the ALJ who presided over the administrative proceeding wasn’t hired according to the requirements of the Constitution, and so his rulings weren’t valid.

ALJs are “Officers of the United States” subject to the Constitution’s Appointments Clause governing who appoints these officials, Lucia contended. The high court agreed with him and remanded his matter for a new proceeding, noting that the ALJ was chosen by SEC employees and not appointed by a department head.

Because ALJs are officers and not mere employees, their appointments must comply with the Constitution’s Appointments Clause, Trump concludes. His order points out that to avoid more appeals of SEC enforcement actions and beyond on a similar basis, the administration’s changing ALJ appointment procedures. But the high court didn’t rule quite that broadly—its holding applied to judges at the SEC and by no means indicated that the examination process should be eliminated.

The president has his own reasons to respond to the ruling so rapidly, and admits as much. ”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,” according to the order.

With the testing requirements jettisoned, it will be even easier for agency heads to choose adjudicators who pass ideological muster, though they may not be as professionally prepared to preside over administrative proceedings. As the order puts it, this latest move will “provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive examination and competitive service selection procedures.”