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Statement of NOSSCR Executive Director Barbara Silverstone Concerning Executive Order Changing Hiring of Administrative Law Judges

  July 12, 2018

“President Trump’s Executive Order (EO) changing the hiring of Administrative Law Judges (ALJs) from a merit-based system to a political one is unnecessary and harmful, threatening the qualified judicial independence of these judges and undermining the due process rights of Social Security disability claimants. The competitive selection process used by the Social Security Administration and other federal agencies prior to issuance of this EO ensured that ALJs had the relevant knowledge and experience to fairly and dispassionately apply the Social Security laws and regulations regarding disability claims. By removing any mandatory qualifications for ALJs except a license to practice law and allowing agencies to hire ALJs based on any criteria they select, the qualified judicial independence envisioned for ALJs by the Administrative Procedures Act is jeopardized.”

“Although the purported reason for changing the ALJ selection process from a competitive one to a political one is to allow agencies to comply with the recent Supreme Court decision in Lucia v. SEC, the EO is neither necessary nor sufficient to accomplish that goal. It leaves the status of the more than 1600 ALJs currently employed by the Social Security Administration in doubt; the agency could resolve the issues left open by Lucia in other ways without putting the judicial independence of ALJs at risk and threatening the due process rights of claimants.”

“At a time when over 900,000 people are waiting an average of more than 600 days for ALJs to rule on their claims for disability benefits—with more than 10,000 dying last year while awaiting a decision—actions that slow down and complicate ALJ hiring are harmful to Americans who need disability benefits to maintain their housing, put food on their tables, and obtain crucial medical treatments.”

“NOSSCR urges President Trump to rescind this damaging and unnecessary order. If the change is maintained, NOSSCR urges SSA to establish criteria for hiring future ALJs that continues to include requirements for relevant experience in litigation and administrative law and relevant knowledge along with hiring procedures that protect the independence of ALJs and due process rights of disability claimants.”

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