President Donald J. Trump signed an Executive Order ("E.O.") exempting administrative law judges ("ALJs") from Civil Service competitive hiring rules and examinations. According to the White House, this E.O. provides agency heads with broader hiring authority and "reduces legal uncertainty" following the U.S. Supreme Court's ruling in Lucia v. SEC which held that the SEC practice of hiring ALJs was unconstitutional.
Under the E.O., agency heads will be able to hire ALJs directly without their undergoing the Office of Personnel Management selection process. Accordingly, agency heads will be able to hire ALJs based on less restrictive requirements similar to those for hiring a federal attorney. The E.O. further provides that the Civil Service Rules and Regulations no longer apply to the removal of ALJs.
Commentary / Kyle DeYoung
The E.O. makes important changes to the process for appointing ALJs. Most significantly, the E.O. puts the authority to hire – and potentially fire – ALJs directly in the hands of agency heads who are political appointees with mostly unfettered discretion. These changes will give agencies more flexibility in selecting ALJs and will likely make ALJs more accountable to the heads of their agencies. At the same time, these changes raise concerns about political influence on ALJs. It remains to be seen if ALJs will maintain their decision independence under the new procedures.
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