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Trump Changes How Federal Agency In-House Judges Are Hired

President Trump has issued an executive order that gives federal agencies far more latitude over hiring administrative law judges. These judges handle a wide variety of disputes that include everything from Medicare claims to civil service employment issues. Previously, administrative law judges had to complete an exam and undergo a competitive selection process.

But Trump's executive order, which is a response to a recent Supreme Court ruling that challenged the authority of an ALJ at the Securities and Exchange Commission, essentially turns these judges into political appointees.

The Supreme Court's decision last month found that an ALJ, who was hired through a general administrative process at the SEC, was appointed improperly, and thus did not have the authority to fine an investment adviser $300,000 for wrongdoing. The court ruled 7-2 that ALJs should be classified as "officers" of the United States because they preside over hearings with "significant authority" and that means they should be appointed by the president or the head of a federal agency.

The White House says the Supreme Court's decision has opened the door to more legal challenges by other improperly hired AJLs.

"What we're trying to do is protect agencies against challenges to the legitimacy of their ALJs," James Sherk, special assistant to the president for domestic policy, was quoted as saying by The Washington Post.

But critics are decrying the order as yet another example of executive overreach.

"The executive order takes a very modest decision from the Supreme Court last month, and basically runs with it to turn just about all administrative law judges within the executive branch from somewhat independent civil servants into politically appointed and politically removable bureaucrats who basically will have no one to answer to other than the administration officials who are responsible for their appointment," said Stephen Vladeck, an expert on administrative law at the University of Texas law school.

He questions whether the federal government will require any basic competency for the judges. And, worse, he worries about biases in hiring.

"The real concern becomes that you're going to have administrative law judges in these agencies who are either there because they're deeply sympathetic to the regulated industries, or because they're deeply hostile to the regulated industries," said Vladeck. "Either way you lose the veneer of independent adjudication on which so much of the modern administrative state rests."

Caroline Frederickson, president of the American Constitution Society, agrees with those concerns and in a statement specifically pointed to possible repercussions with the Social Security Administration. "Administrative law judges handle Social Security disability cases. This administration is on record as wanting to lessen benefits. It's likely that a political ALJ appointed by this administration would rule against the beneficiaries and deny claims."

NPR's Nina Totenberg contributed to this report.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Asma Khalid is a White House correspondent for NPR. She also co-hosts The NPR Politics Podcast.