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Today, Representatives Elijah E. Cummings (D-MD), the Ranking Member of the House Committee on Oversight and Government Reform, and Gerald E. Connolly (D-VA), the Ranking Member of the Government Operations Subcommittee, sent a letter to Chairman Trey Gowdy (R-SC) and Government Operations Subcommittee Chairman Mark Meadows (R-NC) requesting a hearing on President Trump’s recent Executive Order to except administrative law judges from the competitive service. The Executive Order was signed by the president on July 10.

“Under the previous system, ALJs were hired through a competitive service appointment process administered by the Office of Personnel Management (OPM) in which agencies chose a preferred candidate from a list of three candidates provided by OPM,” wrote Cummings and Connolly. “It was generally accepted this process ensured that impartial and qualified individuals were placed into these important positions.”

“We believe the Executive Order would give politically-appointed agency heads nearly unlimited discretion to stack the ALJ corps with partisan individuals, whose only qualification is they are licensed attorneys,” the Members added. “We request that the Committee examine the impact of President Trump’s Executive Order and explore any alternative, Congressionally-directed appointment structures that preserve the integrity of decisions issued by ALJs and ensures ALJs are qualified for their positions.”

The full text of the letter is below, and can be found here.



Dear Chairman Gowdy and Chairman Meadows:

We write to respectfully request a Committee or Subcommittee hearing regarding the Executive Order Excepting Administrative Law Judges from the Competitive Service issued by President Donald J. Trump on July 10, 2018.

In justifying the Executive Order, President Trump cited the Supreme Court’s decision in Lucia v. Securities and Exchange Commission as the reason for making immediate, unilateral, and sweeping changes to how 1,900 Administrative Law Judges (ALJs) are appointed. These are individuals we trust in administrative proceedings that impact public health, labor relations, national security, and other matters that come before agencies of the federal government.

Under the previous system, ALJs were hired through a competitive service appointment process administered by the Office of Personnel Management (OPM) in which agencies chose a preferred candidate from a list of three candidates provided by OPM. It was generally accepted this process ensured that impartial and qualified individuals were placed into these important positions.

Pursuant to standards established by previous Court decisions in United States v. Germaine and Buckley v. Valeo, the Supreme Court found that ALJs “occupy a continuing position established by law” and exercise “significant authority pursuant to the laws of the United States.” The Supreme Court, therefore, held that ALJs are inferior Officers of the United States subject to the Appointments Clause in Article II of the United States Constitution.

The Appointments Clause authorizes Congress to “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Therefore, Congress has a vital role to play in responding to the Court’s decision in Lucia. Additionally, the Oversight Committee’s Oversight Plan states that “the Committee will conduct oversight of Executive Branch directives and Executive Orders to ensure that they do not exceed their legal authority and that they adhere to the requirements of the U.S. Constitution and federal law. The Committee will also examine directives and executive orders to assess their effects.”

We believe the Executive Order would give politically-appointed agency heads nearly unlimited discretion to stack the ALJ corps with partisan individuals, whose only qualification is they are licensed attorneys.

We request that the Committee examine the impact of President Trump’s Executive Order and explore any alternative, Congressionally-directed appointment structures that preserve the integrity of decisions issued by ALJs and ensures ALJs are qualified for their positions.

Sincerely,