Yesterday, President Trump issued an Executive Order exempting administrative law judges from the competitive selection process and stripping them of the removal protections provided by civil service regulations. Under the order, agency heads have much broader discretion over the hiring and firing of ALJs.
The changes to the hiring process are unsurprising. This term, in Lucia v. SEC, the Court held that ALJs are inferior officers, not employees, of the United States and accordingly must be appointed through the procedures listed in Article II of the Constitution—that is, they must be appointed by the President (with or without Senate approval), by heads of departments, or by the courts. The natural way to implement that holding is to exempt ALJs from the competitive selection process and leave the appointment of ALJs to the discretion of agency heads.
But stripping removal protections is a different story. The Court expressly declined in Lucia to address the removal limitations on ALJs. And while the question is not free from doubt, cases like Humphrey’s Executor v. United States, 295 U.S. 602 (1935), suggest that federal laws can limit the removal of ALJs because they are inferior officers.
Lucia and the Executive Order focus on whether ALJs are officers under Article II. But they also raise Article III issues. Article III assigns the judicial power to federal judges with life tenure and salary protections. Those protections are designed to reduce political influence on adjudications.
Despite Article III’s exclusive assignment of the judicial power to the federal courts, the Supreme Court has allowed most federal adjudications to occur outside the Article III courts. ALJs conduct a huge amount of those adjudications. One justification for letting ALJs adjudicate has been that they also are shielded from political influences. Although Article III does not extend its protections to ALJs, ALJs had comparable protections through the civil service rules. The Executive Order greatly weakens those protections.
The reason given by the Executive Order for the change is that, since ALJs exercise significant amounts of power, agency heads should have significant flexibility to hire and fire ALJs. That makes sense from the agency’s point of view. But it seems to get things exactly backwards. The fact that ALJs have significant adjudicatory power suggests that they need more independence, not less, from the political branches.
The independence of ALJs has not been the primary doctrinal basis for permitting ALJ adjudications. But that independence has always been in the background to allay pragmatic concerns about delegating judicial power. One wonders whether this Executive Order might have an impact in the future.