ABA president says Trump order could politicize the process of hiring administrative law judges

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ABA President Hilarie Bass/Office of the president.

Updated: ABA President Hilarie Bass says President Donald Trump’s executive order eliminating the competitive hiring process for administrative law judges is “ill-considered and legally vulnerable.”

Bass wrote a letter urging leaders of the House Rules Committee to allow a House vote on an amendment would deny funds to implement the July 10 executive order, according to a press release.

Bass says Trump’s order gives agency heads “unfettered discretion” to hire administrative law judges based on agency criteria. Giving sole hiring discretion to agency heads “has the potential to politicize the appointment process and interfere with the decisional independence of ALJs,” Bass said.

Trump’s order is a response to the recent Supreme Court decision, Lucia v. Securities and Exchange Commission, which raised questions about the constitutionality of the selection process for administrative law judges. In Lucia, the court ruled that administrative law judges at the Securities and Exchange Commission were officers of the United States under the appointments clause. As a result, the court said, they must be appointed by the president, courts or the heads of federal agencies.

There is no doubt that Lucia requires changes to the current selection and appointment process for administrative law judges, Bass said. “But we believe that those changes should be instituted after there has been an opportunity for Congress and the public to engage in an open and deliberative process that considers possible options for curing the constitutional defects in the current process,” she wrote

The debate on the issue should include how safeguards can protect the unique role of administrative law judges, Bass said. “Nothing less than the integrity of the administrative judiciary is at issue here,” she wrote.

“A fair and impartial administrative judiciary is indispensable to our system of justice. Vast numbers of Americans are involved in administrative adjudicative proceedings every day, and the decisions rendered by ALJs in these proceedings often affect their lives in profound ways,” Bass wrote.

Update: U.S. Rep. Pete Sessions of Texas, the Republican chair of the House Rules Committee, later ruled the ABA-backed amendment was out of order, meaning the measure won’t be debated in its current form, according to the ABA Governmental Affairs Office.

Update on status of the amendment added on July 17.

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