The Future of Administrative Law Judge Selection

Administrative law judges (ALJs) are the workhorses of the administrative state. They preside over thousands of hearings annually in areas such as disability benefits, international trade, taxation, environmental law, occupational safety, and communications law, to name a few. There are nearly 2,000 ALJs employed by 28 agencies in the federal government, as compared to 870 authorized Article III federal judgeships. Keeping this corps of ALJs fully staffed requires numerous appointments annually. Last year, in a decision that likely applies to most if not all federal ALJs, the U.S. Supreme Court held in Lucia v. SEC that SEC adjudicators are “officers of the United States” who must be appointed in accordance with the Constitution’s Appointments Clause. Assuming that ALJs are “inferior officers,” this clause allows Congress to delegate the appointment of ALJs to the President alone, to department heads, or to courts of law. Shortly after the decision in Lucia, President Trump issued an executive order that made significant changes to the ALJ hiring process