President Donald Trump’s new executive order allowing federal agency heads to directly appoint administrative law judges won’t make the ALJs more susceptible to political partisanship, Office of Personnel Management Director Jeff Pon told Bloomberg Law today.
“That’s Washington theater,” Pon said of concerns that the order would politicize judges who decide everything from labor-relations and workplace safety cases to Social Security disability claims and tax disputes. “The Supreme Court ruled that they were an inferior appointment,” he said, “and that we couldn’t hire” ALJs the same way judges are hired, “or that we couldn’t do it the way we had been doing it.”
Pon’s comments come as at least one group, the Association of Administrative Law Judges, is considering a possible lawsuit to block the order. The OPM chief is the face of an ambitious Trump administration plan to overhaul the federal government, including by reorganizing agencies, weakening employee union power, and making it easier to fire workers.
The U.S. Supreme Court in June ruled that Securities and Exchange Commission ALJs are constitutional officers who must be appointed by the president, a department head, or a court. In response, the order moves judges across government agencies from a “competitive service” designation to an “excepted service” designation. That gives agency leaders more leeway to make hiring decisions by crafting their own qualification requirements and select candidates directly.
The OPM directed agency heads to certify that existing judges were properly appointed following the decision, Pon said. That move was meant to ward off potential lawsuits challenging previous ALJ decisions on the grounds that the judges issuing those decisions didn’t have the authority to do so.
Critics say the new order—issued July 10—threatens judges impartiality by making them accountable to political appointees
“Politicizing the federal administrative judiciary is not in the interests of the public,” AALJ President Marilyn Zahm told Bloomberg Law June 12. “Disputes between the public and federal agencies should be adjudicated by professional, impartial judges.”
ALJs have traditionally been appointed through a competitive service process in which OPM sends a list of three names to the hiring agency after candidates take an exam. The order shifts the decision making power to individual agencies.
“We have minimum requirements for them to be barred attorneys and then agencies have the flexibility in adding on different criteria,” Pon said. The judges will get the same “procedural justice” protections against firing as other government employees, he added.