Friday, August 09, 2019

Bipartisan bills would restore law judges to competitive service

By Mark S. Nelson, J.D.

Companion bills sponsored by Sen. Susan Collins (R-Maine), Sen. Maria Cantwell (D-Wash), and Rep. Elijah Cummings (D-Md) would legislatively reverse an executive order signed by President Trump that removed administrative law judges (ALJs) from the competitive service. The bipartisan ALJ Competitive Service Restoration Act would, among other things, restore ALJs to the competitive service with the goal of preserving the independence of ALJs. The Trump executive order arose in the context of the Supreme Court’s decision in Lucia, which held that ALJs are officers of the U.S. and, thus, an SEC ALJ had not been appointed in compliance with the U.S. Constitution’s Appointments Clause, although the opinion left for another day the question of whether ALJs enjoy too many layers of tenure protection.

Taking politics out of ALJ selection. The effort to protect the independence of ALJs began in the last Congress in response to President Trump’s executive order removing ALJs from the competitive service. As Sen. Collins’s press release noted, the removal of ALJs from the competitive service could result in ALJs being selected for political reasons, thus potentially raising questions about ALJs’ qualifications and independence.

"Our bipartisan legislation would ensure that administrative law judges remain well qualified and impartial so that this crucial process remains nonpartisan and fair," said Sen. Collins. Senator Cantwell reiterated the need for impartial ALJs: "Administrative law judges perform very important roles for Social Security and Medicare benefit cases, and it’s essential that they remain independent and not politically influenced in making decisions."

Bill mechanics. Senator Elizabeth Warren (D-Mass), a current candidate for the Democratic presidential nomination, made ALJ independence part of her wider-ranging government ethics bill known as the Anti-Corruption and Public Integrity Act that she introduced in the 115th Congress. Section 405 of the bill would have returned ALJs to the competitive service. The Cantwell-Collins and Cummings bills, by contrast, would include more detailed ALJ provisions than did the Warren bill.

Under the ALJ Competitive Service Restoration Act, for example, ALJs would be restored to the competitive services but they also would be subjected to experiential requirements such as holding a law license from a U.S. state or territory and possessing seven years’ experience litigating or adjudicating formal hearings or trials in federal or state courts or in administrative proceedings.

Moreover, the bill would codify the Supreme Court’s Lucia holding. As a result, heads of executive departments and agencies (but not lower department or agency officials) could appoint as many ALJs as necessary from a list of eligible candidates compiled by the Office of Personnel Management. With respect to reporting duties, a department's or agency's chief ALJ would report to the head of the department or agency, while ALJs would report to the chief ALJ or, if there is no chief ALJ, to the head of the department or agency. The relevant provision would also state that the subsection should not be interpreted to diminish the "ability or independence" of ALJs.

The bill would further clarify that ALJs are exempt from the probationary period contained in 5 U.S.C. §3321 and that certain disciplinary measures applicable to other federal employees would not apply to ALJs, although ALJs would remain subject to provisions directly applicable to ALJs that are contained in 5 U.S.C. §7521. Lastly, the bill provides for the conversion of existing ALJ positions to the competitive service upon enactment.