New Qualifications for ALJs Are Bad News, Legal Experts Warn

On July 10, President Trump issued an executive order that could compromise the independence of federal agency judges, most of whom work at the Social Security Administration (SSA).  "Nothing less than the integrity of the administrative judiciary is at issue here," the president of the American Bar Association said. 

Federal agencies like the SSA often decide when individuals are entitled to government benefits, are liable for fines, and other important matters. When an individual is dissatisfied with those decisions, administrative law judges (ALJs) are the independent arbiters who conduct trial-like hearings to determine whether the decision was wrongly made.

For example, when someone believes she has been wrongfully denied SSI or SSDI disability benefits by the SSA, she can appeal the decision and have it reviewed by an ALJ. The ALJ considers evidence provided by each side and then resolves the dispute based on the evidence and administrative regulations. The ALJ has complete authority to reverse an improper denial of benefits.

President Trump’s order significantly changes the way all ALJs will be hired.  With that change, some fear that the outcomes of ALJ reviews in such cases also may change.

Because of the way ALJs have been hired, they generally have been presumed to be acting fairly and free of bias toward one side or the other, applying the legal principle of due process. Up until now, they were hired based on the results of a competitive test and competitive selection procedures. ALJs were required to have a certain amount of courtroom experience and practical knowledge in the specific area of law covered by the federal agency.

The President’s new order entirely removes relevant experience as a qualification.  Instead, ALJs may now be hired by agency heads based on criteria such as “work ethic, judgment, and ability to meet the particular needs of the agency.” These vague qualities are raising concerns and bringing into question the independence and fairness of ALJs who will be appointed through the new process. 

The President said the change was required by a recent Supreme Court decision that ALJs must be appointed by either the President, a court, or the head of a federal agency, making them political appointees.  But some experts say that Trump went further than the Court’s decision required, and they warn that the new rule could compromise the neutrality of ALJs because agency heads can now hire anyone licensed and admitted to practice law in the U.S., based solely on their viewpoints.

Stephen Vladeck, an expert on administrative law at the University of Texas law school, told NPR: "The executive order takes a very modest decision from the Supreme Court last month, and basically runs with it to turn just about all administrative law judges within the executive branch from somewhat independent civil servants into politically appointed and politically removable bureaucrats who basically will have no one to answer to other than the administration officials who are responsible for their appointment.

"The real concern becomes that you're going to have administrative law judges in these agencies who are either there because they're deeply sympathetic to the regulated industries, or because they're deeply hostile to the regulated industries," said Vladeck. "Either way you lose the veneer of independent adjudication on which so much of the modern administrative state rests."

Social Security claimants will be particularly affected.  All but 300 of the 1,900 ALJs decide SSA cases, of which there is a huge backlog.   In a statement, Barbara Silverstone, executive director of the National Organization of Social Security Claimants’ Representatives (NOSSCR), urged the President to rescind his order, writing: “At a time when over 900,000 people are waiting an average of more than 600 days for ALJs to rule on their claims for disability benefits—with more than 10,000 dying last year while awaiting a decision—actions that slow down and complicate ALJ hiring are harmful to Americans who need disability benefits to maintain their housing, put food on their tables, and obtain crucial medical treatments.”

In a letter to the U.S. House of Representatives' Committee on Rules, American Bar Association president Hilarie Bass called the executive order “ill-considered and legally vulnerable,” and urged the committee to allow a House vote on an amendment that would deny funds to implement it. 

To read more about Trump’s order, click here and click here.