Fedweek

Two senators have introduced legislation (S-3387) to overturn the Trump administration’s recent change in how the government hires administrative law judges, following failed attempts to attach repeal language to the general government spending bill in both the House and Senate.

“Our bipartisan legislation would ensure that administrative law judges remain well qualified and impartial, while this crucial process remains nonpartisan and fair,” said Sen. Susan Collins, R-Maine, who introduced the bill along with Sen. Maria Cantwell, D-Wash.

The change ended the long-standing policy in agencies hired from a central list of qualified candidates that OPM created in a competitive service process. Instead, agencies now hire ALJs under excepted service procedures under general OPM guidelines. There are about 1,900 ALJ positions government-wide, mostly at the SSA but spanning many other agencies.

The administration argues that the change was necessary in light of the U.S. Supreme Court’s recent decision in Lucia v. SEC requiring the final appointment of an ALJ be made by the agency head, not by lower-agency officials. However, concerns have been raised about the potential for hiring on political and other non-merit grounds.

“Following the president’s executive order, the political appointees who run federal agencies can hire any attorney regardless of skill or experience,” said the Association of Administrative Law Judges, which supports the bill. “Nothing in the Lucia ruling requires – or allows – replacing a well-tested merit-based appointment process with an open door to cronyism and political influence.”

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The bill meanwhile would codify the court ruling that agency heads must make the final appointments of ALJs—but adds that the appointment can only be made either from a list provided by OPM or with the approval of OPM.