Bipartisan bill would counter administrative law judge executive order

By:  Jessie Bur
Source: The Federal Times

A bill introduced by Sens. Maria Cantwell, D-Wash., and Susan Collins, R-Maine, would restore administrative law judges to the competitive service, which are positions that rely on a performance examination administered by the Office of Personnel Management.

Administrative law judges were part of this service up until July 10, when President Donald Trump signed an executive order exempting them from the service and leaving their selection up to agency leadership.

“Administrative law judges are tasked with making important decisions every day; they are intensely vetted and put through a competitive application process before being hired,” said Collins in a news release.

“Our bipartisan legislation would ensure that administrative law judges remain well qualified and impartial, while this crucial process remains nonpartisan and fair.”

Administrative law judges serve as impartial officials at a variety of agencies and hand down decisions in cases concerning public benefits programs.

“Administrative law judges make decisions every day that affect people’s lives like Social Security and Medicare benefits, workers’ compensation claims, and even licenses for radio stations and nuclear power plants. We must ensure these judges are fair, impartial and qualified,” said Cantwell.

The Association of Administrative Law Judges said that the executive order was an attempt by the administration to promote court packing with politically motivated appointments.

The AALJ applauded the Senate bill as a correction of that attempt.

“More than 160 million American workers contribute hard-earned payroll taxes to our Social Security system,” said AALJ President Marilyn Zahm.

“If your benefits are at stake, you want an experienced, competent judge who will give you a fair hearing, not someone who got their position because of a political contribution or a campaign connection. Senators Collins and Cantwell are standing up for their constituents and for professionalism and integrity in public service.”

Trump initially signed the executive order in response to a recent Supreme Court decision in Lucia v. Securities and Exchange Commission, which said that ALJ’s are officers of the United States and therefore subject to the Appointment Clause of the Constitution, meaning that authority for their appointment must rest with the president or head of a department.

“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,” said Zahm.

The new legislation would meet the Supreme Court ruling by requiring that the final ALJ appointment be made by an agency head, rather than a lower-authority official, but that the appointment must be made from a list provided by or with the approval of OPM.

The bill was referred to the Senate Homeland Security and Government Affairs Committee, which has yet to put it on the public hearing calendar.