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Executive Order Makes Federal ALJ Appointments Easier

By George Khoury, Esq. on July 13, 2018 6:56 AM

This week, the White House announced the signing of a new Executive Order which shakes up the appointment process for administrative law judges in federal agencies.

As many commentators have noted, the executive order removes some of the more stringent (and objective) requirements candidates need to qualify for an appointment to a federal administrative law judgeship. It is appropriately titled: "Executive Order Excepting Administrative Law Judges from the Competitive Service."

What Does This EO Actually Do?

As the ABA Journal explained, the EO basically scraps the current ALJ selection process. The order removes the "complicated and elaborate examination processes and rating procedures" which ALJs were previously subjected to. Now, as the order explains, agencies will be free to evaluate ALJ candidates based upon "work ethic, judgment, and ability to meet the particular needs of the agency."

As pundits have explained, this opens up the possibility of ALJ appointments becoming much more politically motivated. And while the White House's stated purpose for the EO was to forestall future litigation resulting from the High Court's Lucia decision, that was a notably remote possibility given the decision provided a pathway to not repeat the problem it sought to resolve in Lucia.

How's This Different From the Recent SCOTUS Case?

In Lucia v. SEC, the Supreme Court ruled in favor of a challenge to the appointment process of the SEC's ALJs. However, while the case was pending, the SEC head ratified the appointments of the ALJs, and the High Court effectively said that resolves the issue moving forward. Unfortunately for the SEC, the case was shipped back to it with instructions to rehear Lucia's case, with a different ALJ.

While SCOTUS's decision effectively added a step at the end of the ALJ selection process, this EO makes that agency head ratification step the primary step, and removes the steps requiring a candidate to show objective qualifications.

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