A group of congressmen introduced the ALJ Competitive Service Restoration Act on May 1, which aims to restore administrative law judges (ALJs) to the competitive service.
President Donald Trump (R) moved ALJs from the competitive service to the excepted service—two subsets of the larger civil service—through Executive Order 13843 in July 2018. Trump issued the order in light of the United States Supreme Court’s June 2018 decision in Lucia v. SEC, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. The reclassification of ALJs as members of the excepted service allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications, according to the order. The EO did not change ALJ’s civil service removal protections, according to the Office of Personnel Management (OPM).
Prior to the executive order, ALJs were subject to the competitive service’s merit-based selection process administered by the OPM. Agencies could only hire ALJs from OPM’s pool of vetted candidates.
Opponents of Trump’s executive order have argued that moving ALJs outside of the competitive service threatens their impartiality by allowing partisan agency heads to appoint ALJs based on their own standards. Proponents have argued that the executive order implemented changes required by the court decision in Lucia v. SEC.
U.S. Senators Maria Cantwell (D-Wash.) and Susan Collins (R-Maine) introduced similar legislation in August 2018, but the bill failed to advance before the end of the 115th Congress.
The group of congressmen who introduced the new legislation includes Elijah E. Cummings (D-Md.), Brian Fitzpatrick (R-Pa.), Richard Neal (D-Mass), Rodney Davis (R-Ill.), Gerry Connolly (D-Va.), Danny Davis (D-Ill.), Bobby Scott (D-Va.), John Larson (D-Conn.), and Tom Cole (R-Okla.).