Analysis Law and Policy

How a Brand-New Executive Order Could Seat Judges Who Are Eager to Deport People

Lisa Needham

The Trump administration Tuesday released an executive order changing the hiring process for administrative law judges—a dry topic with big consequences.

The Trump administration on Tuesday issued an executive order on the seemingly mundane topic of administrative law judges (ALJs) and “competitive service selection.” At first glance, this executive order pales in the face of more explosive ones, such as the Muslim ban. However, its dry language masks the fact that this is a way to control the judges that oversee disability claims, environmental regulation violations, and immigration matters—including deportation.

ALJs provide judicial services in the administrative law setting. They oversee proceedings that range from informal hearings to full trials, but their jurisdiction is limited to the agency to which they’re attached.

This ensures that subject-matter experts decide complex regulatory matters, rather than having those matters come before judges who are generalists. But conservatives have long wanted to dismantle the regulatory state, precisely because it is run by neutral, expert, unelected, and un-appointed individuals.

Currently, ALJs are selected via what is known as the competitive examination and service selection procedures. In a competitive hiring setting, applicants must prove they are the best candidate for the job, and the jobs are open to everyone who meets the minimum qualifications. There are often things like written tests, and the candidate’s education and experience matter. The current model goes through the Office of Personnel Management (OPM), which creates a central list of people it deems qualified, and then agency heads assess and hire candidates from that list of qualified people. Because they go through that process, ALJs are typically experts—people with a lengthy history of working in the field over which the agency has oversight. Political affiliations don’t factor into the competitive process.

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Tuesday’s executive order upends all of this. It exempts ALJs from the competitive hiring rules, arguing that doing so will “give agencies greater ability and discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency.” Of course, any robust competitive hiring scheme already takes into account things like whether people have a solid work ethic or are a good fit for the job. What this executive order is really about is shifting away from a qualifications-based assessment of ALJs toward an appointment model.

Agency heads will now have the discretion to hire whomever they want as ALJs without regard to their past experience or current expertise. Of course, they always had a say in how many people got hired and who got hired, but only after the OPM created the list of candidates via a competitive process. But given that Trump has stacked his agencies with cabinet heads who are often diametrically opposed to the traditional missions of those agencies, this is a recipe for politically driven, anti-regulation ALJs to become the norm. It’s an incredibly efficient way to dismantle the administrative state.

In practical terms, this could mean things like a spike in denials of disability benefits. The Trump administration has made no secret of the fact that it would like to cut these. If the Social Security Administration begins to employ ALJs who are political appointees whose philosophy aligns with the administration, they may be far more inclined to deny benefits. Similarly, immigration judges, who oversee matters such as deportation, could become individuals eager to carry out the administration’s goals of rapidly deporting as many people as possible.

Tuesday’s move is in line with the administration’s continued attempts to roll back the regulatory state. Steve Bannon explicitly declared he wants to “deconstruct” the administrative state, scorning the “progressive left” and its goal of regulation. In the very first days of his presidency, Trump issued an executive order stating that for each regulation passed, two must be repealed. It’s an arbitrary and unsustainable way to look at governing because at root it is based on the idea that regulations are inherently something to be thwarted, rather than helping to ensure we have things like clean air, hazard-free workplaces, and water that is safe to drink.

Trump’s U.S. Supreme Court picks are similarly inclined to undermine the administrative state. His first appointee, Justice Neil Gorsuch, believes that the regulatory state “poses a grave threat to our values of personal liberty.” His newest pick, Judge Brett Kavanaugh, decries the administrative state as well, bemoaning the fact that it shifts power from Congress to unelected employees of the executive branch. As a D.C. Circuit Court of Appeals judge, Kavanaugh scorned the decision-making processes of the Environmental Protection Agency, throwing out regulations that agency had spent 20 years constructing. Kavanaugh also apparently loathes certain independent agencies, including the Federal Trade Commission, the Securities and Exchange Commission, and the Consumer Finance Protection Bureau, arguing they act as a “headless” fourth branch of the United States government. Given those views, it is no surprise that the Trump administration is actively courting businesses and asking them to support Kavanaugh’s nomination. The White House is even highlighting Kavanaugh’s ability to “rein in unaccountable independent agencies.”

But even though Trump has been able to fill the federal courts at an astonishing rate, and even though he now has had the opportunity to fill two Supreme Court slots a mere 18 months into his presidency, the goal of undoing the country’s regulatory safety net is thwarted when ALJs continue to be neutral experts rather than political appointees like Trump’s judicial picks are. That’s where this latest executive order comes in.

Curiously, it isn’t even clear Trump can do this via executive order. The order purports to amend certain portions of the Code of Federal Regulations (CFR). However, parts of the CFR cannot generally be changed via a stroke of the pen. Instead, there is a lengthy rulemaking process by which the appropriate agency carefully develops proposed rules, which are then submitted for public comment and review. None of that happened here.

Unfortunately, it doesn’t really matter. The point isn’t to necessarily change neutral, skilled ALJs into politically malleable appointees in one fell swoop, though that’s certainly an ancillary bonus. The point is to put the administrative state on notice that its days are numbered. The point is also to draw a court challenge that likely wouldn’t make it to the Supreme Court until after Kavanaugh is seated. He’ll be another vote on a Court that has already demonstrated hostility to regulations and the agencies that enforce them; then, the deconstruction—the destruction, really—of regulatory oversight can begin in earnest.

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