Yesterday the President ordered that in the future when Administrative Law Judges (ALJs) are hired they will be "excepted service" employees rather than "competitive service" employees. Current ALJs hired as competitive service employees will remain competitive service employees.
Competitive service employees are hired through an examination process administered through the Office of Personnel Management (OPM). Agencies still have some discretion in whom they hire but they have to hire off registers, which are basically lists, provided by OPM. The examination process, which isn't necessarily a written test, is controlled by OPM rather than the agency. As soon as a competitive service employee is hired the agency has to go through a tedious process if it wants to remove the employee.
Excepted service employees are hired through a process set up and administered by the employing agency. The agency isn't required to use an examination process. For the first two years after being hired, an excepted service employee can be fired rather easily and the employee has little if any recourse.
This achieves some longstanding goals of the Social Security Administration. The agency has complained for decades about OPM's process for creating ALJ registers. They felt that the examination process was slow and didn't produce adequate registers when needed. They have felt that the examination process had little or nothing to do with the actual requirements of the job. The agency has also wanted a quicker process for getting rid of bad ALJs. Also, even though Social Security may never have stated it but it's always seemed like they wanted the ALJ position to be part of a career track for agency attorneys. Some of this may literally be agency attorneys coveting ALJ positions but not wanting to jump through OPM's competitive service hoops in order to get the job.
The merits of moving ALJs to the excepted service are debatable. I'm not necessarily opposed. Social Security had legitimate complaints about OPM's administration of the ALJ exam. Some ALJs who were hired through the competitive service have been duds by any reasonable standard -- people with serious psychiatric problems or who were unproductive or unprofessional. It's been too difficult to get rid of these ALJs. On the other hand, going to the excepted service process may create an incestuous atmosphere in Social Security's Office of Hearings Operations. It's also not out of the question that the excepted service process will be used to select candidates for their ideological leanings. Imagine two candidates for an ALJ position. One candidate's resume lists leadership positions he or she has held in the American Civil Liberties Union. The other candidate's resume lists leadership positions in the Federalist Society. Which one do you think gets hired in this Administration? The relative ease of firing excepted service ALJs during the first two years of their employment may make it easy for the agency to get rid of ALJs who, in the agency's view approve too many disability claims. Even if the agency doesn't actually do that, newly hired ALJs may make their decisions conform to what they think the agency wants of them.
What's not debatable, however is that the Supreme Court decision in Lucia v. SEC has been used as a pretext to achieve goals that don't address the issues presented by the Lucia decision. There's an obvious tell. Lucia held that ALJs are "inferior officers" and that under the Constitution "inferior officers" must be appointed by agency heads. If you were drafting a response to Lucia, wouldn't the very first thing you put in be a requirement that ALJs must be appointed by the head of their agency? There's not a word about that in this Executive Order. You don't need to move ALJs from the competitive service to the excepted service in order for them to be appointed by agency heads. The competitive service produced registers -- lists -- of ALJ candidates from which agencies made choices. Agency heads could then make the appointments of ALJs. That's already been done. It's discussed in Lucia! Changing ALJs to the excepted service doesn't address Lucia at all.
I am concerned about how this was done. The President ordered immediate changes in OPM regulations. If you're familiar with the Administrative Procedure Act (APA) you know that's not the way things normally work. The APA requires that agencies publish proposed regulations in the Federal Register and allow the public to comment on them. There are some exceptions to the notice and comment procedure which may apply here. There is some precedent for a President ordering changes in OPM regulations without going through the notice and comment procedure. Still, this seems like an awfully substantive change to make without going through notice and comment procedure. I don't know if this is something that can be challenged.