From Reuters (and note the text I bolded which shows who came up with the Appointments Clause argument to begin with, Kent Barrett of the University of Georgia Law School):
In an executive order issued Tuesday, the Trump administration abruptly ended the longtime bureaucratic process by which federal agencies select administrative law judges – the judicial officers who preside over millions of administrative proceedings a year, from the smallest of Social Security claims [actually Social Security disability claims are worth hundreds of thousands of dollars] to multimillion-dollar enforcement cases. ...
The executive order said the change will give agency heads more freedom, flexibility and responsibility to hire ALJs without compromising the judges’ independence.
Skeptics aren’t so sure. Two administrative law experts told me Wednesday that the order will allow the Trump administration to reshape administrative courts to reflect its policies – and could presage even more aggressive attempts to get rid of ALJs who don’t toe the line.
“I’m growing more concerned,” said University of Georgia law professor Kent Barnett. “This feels like a movement to burn down the entire administrative state.” ...
On its face, said Barnett and Loyola Marymount law professor Adam Zimmerman, the executive order doesn’t pose an immediate threat to ALJ independence. ...
Right away, the profs said, the order seems to empower agency heads to hire new judges based on only their assessment of candidates’ “temperament, legal acumen, impartiality and judgment.” Replacing OPM’s objective hiring criteria with subjective standards, Zimmerman said, “opens the door” to politicization of the ALJ system. ...
That means, according to Barnett and Zimmerman, that Trump officials can stack administrative courts with new judges they’ve hand-selected. “I’m concerned that this packing is going to lead to a one-sided culture within the ALJ corps” and criticism that ALJs are biased and unprofessional, Zimmerman said in an email. ...
[A]ccording to Barnett (who pioneering the Appointments Clause theory in a 2013 law review article), the executive order didn’t actually address the problem the Supreme Court identified in Lucia, since the order changed the process for new ALJs and the Lucia case raised questions about ALJs already serving in the government. The new order, Barnett said, uses a sword to solve a problem that was better suited to a scalpel.
“This came out of the blue - the Supreme Court said nothing about the OPM process,” he said. “The order is based on a feigned argument. Why this change? Why was it done so quickly?” Barnett elaborated on his email to other administrative law profs: “The EO looks like an attempt to undermine ALJ impartiality in fact and certainly appearance, not improve the hiring process itself.”...
Considering that this "solution" does not truly address the problem presented this looks like a pretext for a court packing scheme by an administration that does not appear to have any particular respect for democracy or the rule of law headed by a president who attacked a federal judge's integrity due to his Mexican heritage. At some point surely there are constitutional and propriety questions here. This is not a prosecutor function but a judicial and decider part of government being messed with. For instance, what if a powerful executive branch official or the president under influence of the Heritage Foundation or a secret interest decides that no individual under fifty can be disabled unless they have lost their limbs and they want this carried out at SSA inspite of it being contrary to the agency's rules and it's mission. Will they then threaten the judges to secretly comply or make it a part of the hiring process. Sorry, but in these times and under this administration I do not think this is far fetched. At some point have we not just eliminated the appearance of fairness and propriety in a huge part of our government with huge ramifications for our society and democracy? At some point can a member of the bar in good standing even ethically participate. Will we have a bunch of Michael Cohen mentalities coming in to decide our country's business?
ReplyDeleteIt is particularly concerning since the ALJ corps receives intensive initial training and at least quarterly continuing training from SSA (a party to the cases they adjudicate) and that training is not publicly disclosed. I understand that in the past this type of training has not been viewed as ex-parte argumentation of the law because SSA is entitled to tell ALJs how to interpret the law, but if SSA is merely educating ALJs on the law as it is commonly understood (which would be the only acceptable communication between SSA and the ALJs), why the secrecy? However, now independent ALJs and others leak out some information and the dissemination of unpublished or "secret" law/policy is minimized. Fast forward. With a packed ALJ corp, how much easier will it be to indoctrinate the ALJ corp with unpublished policy (perhaps contrary to the law) in the guise of training and who will be around and/or have sufficient independence to blow the whistle?
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