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Trump just politicized the entire field of federal administrative law

Trump just politicized the entire field of federal administrative law
  (Pablo Martinez Monsivais / Associated Press)

In what looks like a political power play, President Trump has decided that administrative law judges — officials within federal agencies who resolve complaints about regulations, compliance or benefits — will no longer be chosen on the basis of merit. Unless the administration reconsiders this unnecessary and potentially harmful action, Congress should consider mandating a return to the old system.

There are nearly 1,900 administrative law judges in the federal government, the vast majority at the Social Security Administration ruling on disability and other claims. In the past, the so-called ALJs were chosen from a list compiled by the Office of Personnel Management, a civil service agency that evaluates applicants on such neutral criteria as their performance on a competitive examination.

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That will change under an executive order issued by Trump this month. ALJs hired in the future will be given “excepted service” status rather than the “competitive service” status enjoyed by these judges in the past. That means agency officials can appoint whom they like, based on a subjective judgment of the applicant’s “temperament, legal acumen, impartiality and judgment.”

Administrative-law experts fear this could lead to a politicization of the adjudication process or even a return to old-fashioned patronage, elevating loyalty over competence. The new policy also introduces the possibility of ideological litmus tests by this and future presidents. While Trump might choose ALJs who would be expected to take a restrictive view of eligibility for disability benefits, for example, a Democratic president might seek the opposite quality.

Certainly the administration hasn’t offered a persuasive justification for the change. In his executive order, Trump cited a decision by the Supreme Court last month holding that ALJs in the Securities and Exchange Commission had been improperly appointed because they were chosen by the agency’s staff rather than by the commission itself, as the Constitution requires for “officers of the United States.”

But the court didn’t say that it was unconstitutional for ALJs to be appointed from a pool of candidates determined through a competitive examination process, so long as the actual appointment was made by the head of the agency. (Trump’s executive order acknowledged as much, but said there were “sound policy reasons” to eliminate any doubt about that question by reclassifying the position of ALJ.)

Rather than a prudent response to the court’s decision, the president’s order looks like an opportunistic attempt to disguise a ​​​​​​​politicizing policy change as compliance with a court decree. If he persists in this course, Congress should move to restore the previous system with its emphasis on merit and professionalism.

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