President Trump has issued an executive order giving federal agencies more leeway in the hiring of ALJs by ending the traditional practice of hiring off a central register of candidates maintained by OPM and using excepted service hiring procedures instead under a newly designated excepted service Schedule E.
“Agencies will be free to select from the best candidates who embody the appropriate temperament, legal acumen, impartiality, and judgment required of an ALJ, and who meet the other needs of the agencies,” according to a White House explanation of the order. “The new ALJ appointment process is very similar to the process agencies currently use to hire attorneys throughout the executive branch.”
There are just under 2,000 ALJs government-wide, with more than 1,600 of them at the Social Security Administration. They decide on claims for benefits and other disputes between individuals or companies with the government.
The statement said the change was necessary due to a June ruling by the U.S. Supreme Court in an appeal of a decision by a law judge at the SEC. The ruling held that ALJs are “inferior officers” as specified in the Constitution and thus can be hired only by the President or the head of the employing agency; the result was that the ALJ was found to be improperly hired and thus not authorized to make the decision, and the case was sent back to the SEC for reconsideration.
The White House statement says that precedent could be applied government-wide and that having direct hiring by agencies will head off more such challenges; for current ALJs, agencies may accomplish the same end by having the agency head certify the person’s hiring.