FBA Statement on Executive Order 13843

Statement of the Federal Bar Association on Executive Order 13843 Regarding the Hiring of Federal Administrative Law Judges
Adopted August 10, 2018

    An independent, effective administrative judiciary is essential to the proper adjudication of federal administrative law disputes. Administrative law judges (ALJs) are a vital element of that process. Selected on the basis of professional merit and insulated from political pressures, ALJs are called upon to preside over full and fair hearings and render decisions based solely upon the applicable law and evidence.

    On July 10, 2018, President Trump issued Executive Order 13843, 83 Fed. Reg. 32755, requiring federal agencies to more flexibly appoint ALJs as part of the “excepted” civil service, rather than through the “competitive service” procedures used for decades by the Office of Personnel Management (OPM). The executive order replaces OPM’s extensive hiring and selection procedures with a minimal standard that permits agencies to appoint anyone as an ALJ so long as they are permitted to practice law. The executive order authorizes, but does not require, agencies to supplement that minimal requirement with additional standards that assess qualities in ALJ candidates that meet particular agency needs. Though the efficacy of OPM’s ALJ examination and certification procedures has long been a matter of debate, the executive order goes further by citing a recent Supreme Court decision (Lucia v. SEC, 138 S. Ct. 2044 (2018)) as grounds for questioning the compatibility of the OPM procedures with the discretion an agency head should possess in making ALJ appointments based on Lucia's interpretation of the Appointments Clause (art. II, § 2, cl. 2) of the United States Constitution.

    Critics of the executive order have questioned whether the change to excepted service appointments of ALJs may lead to a politicized appointment process and an administrative judiciary lacking the necessary experience, judgment and skills to adjudicate a wide range of administrative disputes. Indeed, the lone requirement that an ALJ need only be authorized to practice law raises legitimate concerns over the prospect of abuse in the exercise of agency hiring authority.

    Despite this potential relaxation of standards, there are still opportunities to retain selection criteria that would assure excellence in our ALJs. First, the executive order contemplates OPM rulemaking to update government-wide regulations in implementation of the new ALJ hiring and appointment framework. Second, agencies will have latitude under the order to assure that ALJ appointments are compatible with Lucia and the shift to the excepted service, and thus could still impose appropriate qualifications for their ALJs. The Federal Bar Association encourages national leaders and Members of Congress to take prompt and responsible action to assure that our federal administrative judiciary remain fully qualified, independent and effective in resolving the administrative disputes brought before them.

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