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The Future of Administrative Law Judge Selection

  October 29, 2019 | By Jack Beerman, The Regulatory Review

Administrative law judges (ALJs) are the workhorses of the administrative state. They preside over thousands of hearings annually in areas such as disability benefits, international trade, taxation, environmental law, occupational safety, and communications law, to name a few. There are nearly 2,000 ALJs employed by 28 agencies in the federal government, as compared to 870 authorized Article III federal judgeships.

Keeping this corps of ALJs fully staffed requires numerous appointments annually. Last year, in a decision that likely applies to most if not all federal ALJs, the U.S. Supreme Court held in Lucia v. SEC that SEC adjudicators are “officers of the United States” who must be appointed in accordance with the Constitution’s Appointments Clause. Assuming that ALJs are “inferior officers,” this clause allows Congress to delegate the appointment of ALJs to the President alone, to department heads, or to courts of law. Shortly after the decision in Lucia, President Trump issued an executive order that made significant changes to the ALJ hiring process.

Before Lucia and the executive order, most ALJs were already appointed by department heads, after a process administered by the Office of Personnel Management (OPM) that included a competitive examination and point rating system with a significant preference for veterans. Under the OPM process—which did not take subject-matter expertise into account—the three top-scoring applicants were placed on a list of eligible candidates. Agencies could hire only from that list unless they decided to reject all three candidates and request a new list or hire an incumbent ALJ away from another agency.

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