The order is based on a June 21 Supreme Court ruling in “Lucia v. Securities and Exchange Commission” that ALJs are “officers of the United States” and therefore subject to the Constitution’s Appointment’s Clause.
“The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve. Given this expanding responsibility for important agency adjudications, and as recognized by the Supreme Court in ‘Lucia,’ at least some and perhaps all ALJs are ‘Officers of the United States’ and thus subject to the Constitution’s Appointments Clause, which governs who may appoint such officials,” Trump wrote in the executive order.
“Placing the position of ALJ in the excepted service will mitigate concerns about undue limitations on the selection of ALJs, reduce the likelihood of successful Appointments Clause challenges, and forestall litigation in which such concerns have been or might be raised.”
The executive order
. Whether Lucia
's holding can be extended that far, of course, likely will be the subject of further litigation. (To the extent the APA might govern, the anticipated argument would be that those portions of it are now unconstitutional in light of Lucia
As this National Review article notes
, Justice Breyer predicted that Lucia
would lead to the undermining of ALJs. It took less than a month to prove him correct.
focused on SEC ALJs, all ALJs are included in the executive order -- including the immigration judges.