An executive order President Donald Trump signed Tuesday gives agency heads greater discretion over the selection of so-called administrative law judges. | Al Drago/Getty Images Trump tightens control over regulatory judges

President Donald Trump moved to tighten control over the in-house judges that implement much of the federal government’s regulatory agenda — his latest step to consolidate political power throughout the sprawling bureaucracy.

An executive order signed Tuesday gives agency heads greater discretion over the selection of so-called administrative law judges. These judges, typically promoted out of the federal civil service, make legal rulings that drive regulatory actions across the federal government.


The federal government employs 2,000 administrative law judges, with the greatest number in the Social Security Administration. They also adjudicate regulatory disputes in HHS, the Federal Energy Regulatory Commission, the NLRB and the SEC. Their rulings can be, and often are, challenged in federal court.

The executive order, which follows on a June ruling by the Supreme Court, opens a new front in the Trump administration's war on the regulatory state. An earlier executive order in January 2017 required two deregulatory actions for every new major regulation enacted. Although that hasn't occurred, the pace of new major regulations has slowed to a crawl.

The White House also moved recently, in three executive orders, to reduce the power of the civil service by limiting federal unions' ability to process whistleblower and other worker complaints; by ordering previous federal union agreements to be renegotiated; and by making it easier to fire federal employees.

The new executive order, in putting future selection of administrative law judges more directly in the hands of political appointees, will make it easier for the Trump White House to compel regulatory judges to follow its anti-regulatory policies — and to fire them if they don't.

Morning Shift newsletter Get the latest on employment and immigration, every weekday morning — in your inbox. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

The executive order was prompted by a Supreme Court ruling last month, in Lucia v. Securities and Exchange Commission, that the SEC's administrative law judges must be hired by SEC commissioners, who are political appointees, and not by the SEC's professional staff, who are not, because the regulatory judges are "officers" of the U.S. subject to the Constitution's appointments clause.

The Supreme Court didn't clarify in Lucia whether all administrative law judges must be hired by political appointees or the president, or only those at the SEC. In its executive order, the White House appears to be taking the broadest possible view, upending regulatory arrangements that date to the enactment of the Administrative Procedure Act in 1946.

Under the 1946 law, administrative law judges are chosen based on their scores in elaborate examinations. The new executive order exempts administrative law judges from that requirement, claiming “sound policy reasons” for doing so.

“This action will also give agencies greater ability and discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency,” the order said.

The order removes the judges from the “competitive service” — a federal worker classification that follows hiring rules laid down by the federal Office of Personnel Management — and places them into the “excepted service,” a category of federal workers that goes through a separate process. Excepted service employees typically work in the areas of national security or intelligence, and therefore require greater scrutiny. The order creates a new category within the excepted service specifically for administrative law judges.

The decision appeared to catch some federal agencies by surprise, with many still figuring out how to follow the Lucia ruling.

“The Executive Order is currently under review,” said a spokesperson for the Social Security Administration.

“The Department will comply with the executive order,” added a Labor Department spokesperson.

The Office of Personnel Management praised Trump for giving agency heads “greater flexibility and responsibility” over the judge appointments.

“This change addresses potential constitutional concerns with the ALJ appointment process without affecting ALJ’s decisional independence after they are appointed,” OPM Director Jeff T.H. Pon said in a statement. “It’s a change that has been necessary for quite some time.”