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Executive Order 13843: Excepting Administrative Law Judges from the Competitive Service is a presidentialexecutive order removingadministrative law judges (ALJs) from the hiring requirements of the competitive civil service and reclassifying them as part of theexcepted service. It was issued byPresidentDonald Trump (R) in July 2018.

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.

The order was issued in light of theUnited States Supreme Court's June 2018 decision inLucia 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.^[1]

Background

See also:Lucia v. SEC,administrative law judge, andcivil service

Prior to the executive order, ALJs were required to undergo a recruitment and examination process administered by theU.S. Office of Personnel Management (OPM) as part of thecompetitive civil service. After candidates had been vetted by the OPM, agencies could hire ALJs from the OPM's list of top-three candidates.^[2][3][4]

The executive order removed ALJs from thecompetitive civil service and reclassified them as members of theexcepted service. Theexcepted service provides agencies with an avenue "to fill special jobs or to fill any job in unusual or special circumstances" outside of the competitive hiring process, according to the OPM. Examples of positions in theexcepted service include federal attorneys, chaplains, intelligence agents, and other specialized agency employees. The new hiring procedures under the executive order also grant agencies the discretion to hire ALJs with specific qualifications that suit their respective areas of expertise, rather than one of the top-three generalist candidates vetted by the OPM.^[4][5][6]

Provisions

Excepted service

See also:Excepted service

The order requires that ALJs be appointed under the newly created Schedule E of the excepted service. The order makes an exception for incumbent ALJs, who can remain in the competitivecivil service until their retirement.^[1]

Requirements

The order amended5 CFR 6.3(b), which describes the process for the hiring of individuals to positions in the excepted service, to stipulate minimum professional requirements for ALJs. Candidates, other than incumbent ALJs, must possess a professional license to practice law pursuant to the standards of their licensing government entity. Agencies may require additional qualifications when appropriate.^[1][8]

Response

Marilyn Zahm, president of the Association of Administrative Law Judges, issued a press release on July 12, 2018, expressing concern that E.O. 13843 would politicize the role of ALJs and threaten impartiality in agency adjudication proceedings:^[9]

OPM Administrator Jeff Pon dismissed concerns that E.O. 13843 would politicize ALJs in a July 12, 2018,Bloomberg interview, calling them "Washington theater." Pon argued that the executive order implemented changes required by theUnited States Supreme Court's decision inLucia v. SEC.^[10]

Legislation to restore ALJs to the competitive service

See also:Competitive service

116th Congress

A bipartisan group of congressmen introduced the ALJ Competitive Service Restoration Act on May 1, 2019, which aims to restore ALJs to the competitive service. The legislators argued that returning ALJs to the competitive service would ensure their independence and impartial decision-making.^[11]

"Lives would be disrupted if independent adjudicators were replaced by partisan judges whose appointments were based on politics," wrote the congressmen in a statement. "Congress would not be fulfilling its constitutional duty of oversight if it allowed the politicization of the corps of independent adjudicators who are responsible for protecting the due process rights of the American people."^[11]

The group of congressmen includesElijah 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.), andTom Cole (R-Okla.).^[11]

115th Congress

U.S. SenatorsMaria Cantwell (D-Wash.) andSusan Collins (R-Maine) introduced legislation on August 23, 2018, aimed at restoring ALJs to thecompetitive service. The proposal aimed to both reinstate OPM's role in the ALJ vetting process and accommodate theU.S. Supreme Court's ruling inLucia v. SEC by allowing agency heads to appoint ALJs from OPM's candidate pool.^[12][13]

Cantwell and Collins argued that OPM's competitive examination and vetting process for ALJs, which was eliminated under E.O. 13843, functioned to ensure that ALJ candidates were qualified and impartial. The senators claimed that E.O. 13843 threatened ALJ impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.^[13]

"Administrative law judges make decisions every day that affect people’s lives like Social Security and Medicare benefits, workers’ compensation claims, and even licenses for radio stations and nuclear power plants," stated Cantwell. "We must ensure these judges are fair, impartial, and qualified."^[13]

The legislation failed to advance before the end of the 115th Congress.^[11]

Noteworthy events

OPM issues proposed rule to move ALJs from competitive service to excepted service (2020)

The Office of Personnel Management (OPM) on September 21, 2020, issued a proposed rule that would implement E.O. 13843 by moving ALJs from the competitive service to the excepted service.^[14]

The proposed rule from OPM requires that agency heads appoint new ALJs to positions within the excepted service. The proposed rule also clarifies that certain protections aimed at ensuring the independence of ALJs remain intact, such as the prohibition against agencies subjecting ALJs to performance reviews and the role of the Merit Systems Protection Board (MSPB) in overseeing ALJ discipline.^[15]

See also

• Administrative law judge
• Lucia v. SEC
• U.S. Office of Personnel Management
• Civil service

External links

• Executive Order 13843: Excepting Administrative Law Judges from the Competitive Service (2018)
• RegInfo.gov
• Regulations.gov
• Search Google News for this topic

Footnotes

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Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget