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SAFEGUARDING THE EFFICIENCY OF ADMINISTRATIVE COURTS: The President signed an Executive Order ensuring that Administrative Law Judges (ALJs) are hired through a more efficient and less burdensome process.

  • The Executive Order allows agency heads to directly hire ALJs without going through the complex Office of Personnel Management (OPM) selection process by creating a new excepted service “schedule E” for them.
    • This process gives agency heads greater flexibility and responsibility for ALJ appointments.
    • Agencies will be free to select from the best candidates who embody the appropriate temperament, legal acumen, impartiality, and judgment required of an ALJ, and who meet the other needs of the agencies.
    • The new ALJ appointment process is very similar to the process agencies currently use to hire attorneys throughout the executive branch.

SUPREME COURT RULING ON ALJ APPOINTMENTS: The Supreme Court recently ruled that SEC ALJs are inferior officers of the United States, and require appointment consistent with the Appointments Clause of the Constitution.

  • In a decision authored by Justice Kagan, the Supreme Court recently ruled in Lucia v. SEC that Securities and Exchange Commission (SEC) ALJs are considered “inferior officers” of the United States as opposed to ordinary employees.
    • The Appointments Clause limits who may appoint inferior officers. It permits such officers to be appointed by the President or Department heads, as Congress has by law provided, but it does not allow them to be hired like ordinary government employees who are not appointed in a manner consistent with the Clause.
  • The Supreme Court held that the SEC’s ALJ appointment process did not satisfy this constitutional requirement.

AGENCY AUTHORITY IN DOUBT: This Supreme Court ruling casts doubt on ALJ authority in other Federal agencies.  

  • In Lucia, the Supreme Court vacated a decision made by an SEC ALJ, ruling that the ALJ was improperly appointed and therefore not authorized to rule on behalf of the SEC.
  • The logic of Lucia casts doubt on the validity of many – if not all – ALJ appointments within the Federal Government.
    • Agency ALJs are selected through a complex process that limits the flexibility of agency heads in making these appointments.
    • Some ALJs may not have been appointed by the head of the agency, but by lower agency officials.
    • Other ALJs may exercise significant authority and could be classified as inferior officers under this ruling.
  • Any ongoing legal uncertainty over ALJ appointments and authority could hinder the enforcement of dozens of important laws protecting Americans.
  • The order reduces legal uncertainty under the Appointments Clause and helps to ensure that agencies can continue to enforce the law and serve the American people.
    • This order is an important step in preempting arguments going forward that ALJs have been unconstitutionally selected and that their decisions should be overturned.
  • This order addresses potential constitutional concerns with the ALJ appointment process without affecting new ALJs’ decisional independence after they are appointed or altering the status of incumbent ALJs.