Excepting Administrative Law Judges From the Competitive Service

Overview

Introduction

Executive Order 13843, issued by President Donald Trump on July 10, 2018, significantly altered the appointment process for Administrative Law Judges (ALJs) by transitioning them from the competitive service to the excepted service. This executive action followed the Supreme Court's decision in Lucia v. Securities and Exchange Commission, which classified ALJs as "Officers of the United States," thereby subjecting them to the Appointments Clause of the U.S. Constitution. The order seeks to resolve legal ambiguities and increase the flexibility of agency heads in appointing ALJs, bypassing the traditional competitive examination process. This strategic shift emphasizes the necessity for ALJs to exhibit key traits such as legal expertise, impartiality, and sound judgment, given their crucial role in federal adjudications.

Detailed Changes

Executive Order 13843 delineates that ALJ positions will now fall under the excepted service, specifically within Schedule E, thus exempting them from conventional competitive hiring regulations and exams outlined in 5 CFR, part 302. This change allows agencies to assess potential appointees with a focus on character traits and qualifications suited for specific agency demands. The EO is driven by the acknowledgment of the critical responsibilities ALJs bear, whose decisions are often the definitive legal outcomes for agencies. By removing the competitive service constraints, the order aims to mitigate potential constitutional challenges while expediting the appointment of candidates who align with agency-specific needs.

Purpose and Rationale

The transition of ALJs to the excepted service addresses concerns about the constitutionality of former appointment processes and seeks to bolster the legitimacy and durability of agency adjudications. By employing the excepted service category, agencies are granted the ability to choose candidates meeting precise specialized requirements, thereby enhancing the fairness and effectiveness of the adjudicative process. This policy marks a broader governmental shift towards reinforcing agency autonomy and proactively addressing constitutional challenges, reflecting the administration's focus on asserting executive control over federal adjudicatory structures.

Legal and Policy Implications

Constitutional Concerns

The Supreme Court decision in Lucia v. SEC established the legal context for Executive Order 13843, raising questions regarding ALJ appointments under the former competitive service framework. The Appointments Clause stipulates that officers exercising significant authority must be appointed by the President, courts of law, or heads of departments. By eliminating the competitive examination requirement, the EO complies with this constitutional mandate, offering agency heads discretion theoretically compatible with appointing officers' constitutional needs.

Statutory Adjustments

The Executive Order modified Civil Service Rule VI and specific sections of the Code of Federal Regulations to institute Schedule E, accommodating ALJs. This realignment impacts existing statutes and regulations on hiring practices, necessitating adaptations in agency hiring methods and ensuring compliance with other statutory obligations, such as veteran preference, retained "as far as administratively feasible." The changes highlight increased hiring flexibility while curtailing the risk of litigation arising under the Appointments Clause.

Policy Shifts

Policy-wise, Executive Order 13843 signifies a departure from traditional competitive service fundamentals, placing a premium on flexibility in governmental operations over rigid procedural adherence. It represents a movement towards pragmatism, addressing evolving constitutional interpretations and dynamically adjusting civil service processes to meet operational demands. Such changes aim to amplify the executive branch's control over personnel decisions in specialized adjudicative roles, prioritizing operational efficiency and legal defensibility.

Long-term Implications

In the long term, the EO could influence broader civil service reforms by setting a precedent for the discretionary promotion of individuals serving in other specialized federal roles. It may provoke discussions on balancing merit-based selection and the need for flexibility in appointing individuals with qualifications aligned with agency missions. Additionally, it suggests future reforms reshaping the federal civil service framework to prioritize agency-specific qualifications and executive discretion.

Interagency Coordination

To ensure a successful transition to the new appointment structure, interagency coordination is pivotal. Agencies must collaborate with the Office of Personnel Management (OPM) for timely implementation of regulations. This interagency cooperation suggests a policy preference for strengthening executive agency collaboration over standardized federal procedures, with the EO aiming to tailor civil service operations to agency-specific contexts effectively.

Who Benefits

Agency Heads and Executive Branch

Agency heads are among the primary beneficiaries of this Executive Order, benefiting from increased discretion in hiring ALJs who suit their agency's cultural and operational needs. This flexibility could lead to more customized and efficient adjudicative processes, allowing agency leaders to prioritize particular candidate qualities and qualifications. Enhanced autonomy for agency heads aligns with broader executive priorities for operational efficiency within the federal bureaucracy.

Experienced Legal Professionals

Legal professionals with substantial experience and expertise in agency-specific operations stand to gain from this policy shift. The removal of a competitive examination process allows agencies to evaluate credentials directly related to their requirements, potentially benefiting candidates with substantial expertise or courtroom experience. The change encourages a more experienced and specialized cohort of ALJs, equipped to adjudicate complex regulatory matters proficiently.

Regulatory Agencies

Regulatory agencies, especially those with highly specialized mandates, benefit from appointing ALJs with skills directly relevant to their operations. This can result in more effective and informed decision-making, strengthening agency adjudications' credibility and increasing public trust in regulatory processes. The reforms promise a more adaptive and responsive regulatory environment, vital for tackling complex legal challenges efficiently.

Proponents of Flexible Government Employment

Advocates for civil service employment reform may welcome the EO positively, reflecting a shift towards greater flexibility in governmental hiring. This aligns with broader arguments for adaptability within civil service structures to confront contemporary challenges effectively. It showcases a move from rigid bureaucratic systems towards procedures that directly respond to evolving governmental needs and priorities.

Legal Community and Scholars

The legal community, especially constitutional scholars, may find the EO's alignment with the Lucia v. SEC decision noteworthy. By addressing constitutional ambiguities in ALJ appointments, it offers concrete implementation of judicial rulings, generating discourse about balancing executive powers with constitutional mandates. This alignment presents a case study about the impacts of judicial decisions on executive orders and administrative practice.

Who Suffers

Competitive Service Applicants

Individuals anticipating participating in the competitive service examination process for ALJ positions may face disadvantages under the excepted service transition. Potential applicants who excel in standardized test environments or lack networks to facilitate federal employment may find fewer opportunities in the revised system. This could inadvertently limit candidate diversity for ALJ positions.

Civil Service Protections Advocates

Advocates of civil service protections may harbor concerns, particularly about the potential for EO to foster patronage or favoritism in hiring practices. The shift to the excepted service could be seen as undermining merit-based hiring principles that form the foundation of the civil service system, raising fears that such changes could encroach on other public sector employment areas.

Unions and Employee Associations

Federal employment unions and employee associations might critically view this order as it could weaken collective safeguards by allowing hiring decisions that bypass standard processes. Concern exists that this change could undermine job security and limit appeals mechanisms typically available within competitive service frameworks, potentially affecting employer-employee relations in federal agencies.

Potential Applicants from Underrepresented Communities

The shift may pose barriers for applicants from underrepresented communities who rely on objective competitive service processes for accessing government roles. Without competitive exam structures, fewer mechanisms may ensure diversity and equity in ALJ selection, possibly impacting the inclusivity of the adjudicative workforce.

Agencies Unprepared for Transition

Agencies inadequately prepared for transitioning their hiring methods to align with Schedule E regulations may face operational challenges. The abrupt shift may burden human resource departments with creating new assessment criteria and protocols under the revised framework, diverting attention and resources from other priorities.

Historical Context

Precedents and Executive Autonomy

Executive Order 13843 fits within a broader historical context of executive efforts to assert control over personnel management and regulatory processes. Previous administrations have pursued increased executive discretion in appointing officials to key roles, reflecting a persistent tension between rigid federal employment protocols and executive flexibility demands. This EO underscores a tradition of leveraging executive orders to bypass legislative processes that might impede swift governmental action.

Response to Judicial Clarifications

The EO can be seen as a direct response to the Supreme Court's decision in Lucia v. SEC, underlining the evolving nature of judicial-executive interactions. Historically, judicial opinions often prompt legislative and executive actions aimed at resolving ambiguities exposed by court rulings. The order's implementation signifies an administration's proactive stance in aligning government operations with contemporary judicial interpretations.

Administration Ideology

The Trump administration prioritized deregulation and administrative efficiency in several policies. This EO aligns with the administration’s strategic objectives of minimizing bureaucratic constraints and enhancing agency autonomy to achieve targeted outcomes effectively. It reflects an ideological inclination towards interpreting administrative law to emphasize executive control and accountability.

Reforming the Administrative State

EO 13843 contributes to a broader discourse on reforming the administrative state, emblematic of a trend to recalibrate the balance between effective governance and procedural protections. By revising ALJ appointments, the order demonstrates a pivot towards adaptable governance structures better suited to rapid policy shifts and regulatory environments.

Impact on Administrative Jurisprudence

Highlighting the alignment of ALJ appointments with constitutional mandates, the EO aids the developing administrative jurisprudence. It marks a historical moment where executive actions are critically examined through judicial decisions, contributing to dynamic feedback between government branches intent on refining the legal frameworks governing administrative functions.

Potential Controversies or Challenges

Legal Controversies

The reclassification of ALJs through EO 13843 raises potential legal challenges, particularly concerning veteran preference and interpreting "good administration" under section 3302(1) of title 5, U.S. Code. Legal ambiguities persist about excluding ALJs from competitive processes being in alignment with statutory and constitutional rights, potentially prompting lawsuits to scrutinize the policy shift.

Congressional Pushback

Legislative branches may view this EO as executive overreach, bypassing established statutory procedures meant to ensure merit-based appointments. Congressional advocates for robust civil service protections might challenge the order, asserting it undermines accountability and transparency in federal appointments. Such conflicts could lead to congressional inquiries or legislative initiatives to override the policy.

Enforcement Concerns

Agencies implementing the new appointment procedures face logistical challenges in reorienting hiring practices while ensuring EO compliance. The transition demands careful regulation adoption, understanding Schedule E implications, and HR department training, straining resources and creating procedural discrepancies that might lead to enforcement complications.

Judicial Interpretations

EO 13843's alignment with administrative law principles may face scrutiny in judicial settings, especially if advocacy groups or affected individuals seek judicial relief. Courts will assess whether the executive action effectively addresses constitutional concerns raised in Lucia v. SEC, balancing operational flexibility against statutory protections for federal employees.

Impact on Future Administrations

The shift towards excepted service for ALJs might be a bellwether for future executive actions, inviting debate on presidential powers in restructuring civil service frameworks. Controversial EO elements may become focal points in broader discussions on reasserting congressional oversight over administrative appointments, influencing subsequent administration strategies navigating similar legal landscapes.