Lawmaker looks to block Trump's latest workforce order

Two leading Democrats on the House Oversight Committee are also seeking hearings on the executive order putting administrative law judges outside of the competitive service.

justice scales on a table

A House lawmaker is looking to block a July 10 executive order reclassifying administrative law judges outside of the competitive service under a new appointment authority dubbed Schedule E.

The order, ostensibly in response to Supreme Court decision in the case of Lucia v. Securities and Exchange Commission, eliminates the competitive examination and selection process used for ALJs. The ruling in Lucia found that in some cases, the use of ALJs in the competitive service violated the appointments clause of the Constitution. It's not clear whether the Lucia decision has any relevance outside the narrow confines of SEC cases, but President Donald Trump's executive order applies to ALJs across government, mostly at the Social Security Administration but also at other agencies including Health and Human Services and Labor.

ALJs decide cases involving Social Security benefits claims, Medicare claims and more.

 Rep. Bobby Scott (D-Va.) is offering an amendment to an appropriations bill to prohibit the use of Office of Personnel Management funds in implementing the order.

Hilarie Bass, president of the American Bar Association, is opposing the order and supporting Scott's amendment.

"By giving agency heads sole discretion to hire ALJs who will be making determinations affirming or overturning decisions rendered by that agency, the EO has the potential to politicize the appointment process and interfere with the decisional independence of ALJs," Bass wrote in a July 16 letter to the leaders of the House Rules Committee, urging the adoption of Scott's amendment.

Additionally, Rep. Elijah Cummings (D-Md.) and Rep. Gerry Connolly (D-Va.) want the House Oversight Committee to hold hearings on any changes made to ALJ selection in the wake of the Lucia ruling.

Like Bass, the lawmakers are concerned about cronyism and favoritism in the selection of ALJs.

"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," Cummings and Connolly wrote in a July 16 letter to Reps. Trey Gowdy  (R-S.C.) and Mark Meadows (R-N.C.) seeking Oversight Committee hearings on the executive order.

An official at the American Federation of Government Employees told FCW that the union is "concerned" about the order. While AFGE doesn't represent ALJs who have their own association, the official said, "this is a continuation of the administration's attempt to bypass competitive service hiring requirements."