Trump signs EO to end competitive selection process for Administrative Law Judges

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Legendary Cowboy
Aug 31, 2007
Stupid about AGW!!
The Administrative Procedure Act of 1946 established that Federal Administrative Law Judges be appointed to the position based on scores they achieve in a 4 hr written and oral exam before a panel that includes an Office of Personnel Management Rep, a Rep from the American Bar Association, and a sitting current Administrative Law Judge.

It was the ONLY merit based judicial corps in the US.

Trump just signed an EO to remove this merit based system of selecting these judges which will mean they will now be appointed by the POTUS as the POTUS sees fit and can also be removed by the POTUS as their appointment is no longer based on merit.

These Judges are part of the Executive Branch and are not responsible to or subject to the supervision or direction of any Federal employee or agent of any Federal agency engaged in the performance of investigation or prosecution functions. They have the power to to issue subpoenas, rule on proffers of evidence, regulate the course of a hearing, and make recommended decisions.


Has no Rx for his orange obsession.
A/V Subscriber
Nov 8, 2004
Wishing I was in Stillwater
From WSJ editorial page:

Administrative Law Smackdown

The Supreme Court strikes a blow for political accountability.

By The Editorial Board
June 21, 2018 7:11 p.m. ET

Thursday wasn’t a complete loss for liberty at the Supreme Court. While the Justices opened Pandora’s box in taxing the internet, they also took a modest step toward enforcing more accountability on the ever-expanding administrative state.

In Lucia v. SEC, the Court ruled 6-3 that under the Constitution administrative law judges must be appointed by proper political authorities, not merely by career bureaucrats. ALJs, as they’re known, have proliferated across the government to adjudicate disputes between citizens and federal bureaucracies. ALJs aren’t Article III judges confirmed by the Senate. They are executive-branch (Article II) judges who rule on executive-branch cases.

Securities and Exchange Commission administrative Judge Cameron Elliot ruled against Raymond Lucia for securities violations. Yet Judge Cameron wasn’t appointed by the President or the five SEC Commissioners. In a crisp majority opinion, Justice Elena Kagan concludes that this violates the Constitution’s Appointments Clause because Judge Elliot is an officer wielding considerable authority.

As Justice Clarence Thomas writes in his concurring opinion, “the Appointments Clause maintains clear lines of accountability—encouraging good appointments and giving the public someone to blame for bad ones.” The government cannot hand authority to ALJs who are appointed by low-level managers with no line of responsibility to the President. They must be appointed by the President or SEC Commissioners in this case, or a head of department in others.

The left-leaning Justice Kagan’s decision to join the five conservative judges in this view of the separation of powers is encouraging and shows a streak of intellectual independence. Justice Stephen Breyer agreed that Judge Elliot had been wrongly appointed on statutory grounds, but he saw no need for Justice Kagan’s more sweeping constitutional analysis.

The ruling is a victory for political accountability in an administrative state that is ever more sprawling and opaque. Administrative judges can be especially frustrating because their rulings overwhelmingly favor the agencies for which they work. Agencies with the power for significant enforcement action like the SEC should be using them in fewer cases, and the Commissioners should review their decisions with more care than they do.

One reason Americans hate government is that they too often feel it is rigged against them. Kudos to the Justices for trying to maintain clearer constitutional lines of political accountability.

Appeared in the June 22, 2018, print edition.