Last month, the Supreme Court in Lucia v. SEC (2018) held that Administrative Law Judges (ALJs) are “Officers of the United States” subject to the Appointments Clause. In a subsequent effort to mitigate concerns over the selection of ALJs and reduce the likelihood of litigation based on Appointments Clause challenges, the President signed Executive Order 13843, excepting ALJs from competitive service by directing the Office of Personnel Management (OPM) to amend Civil Service Rule VI. As a result, agency heads now have greater discretion and authority to appoint and hire ALJs.
However, Executive Order 13843 raises questions as to whether the President has the authority to amend federal rules codified in the Code of Federal Regulations and bypass normal “notice-and-comment” rulemaking procedures required by the Administrative Procedure Act (APA). The President has the power to issue an executive order if authorized by Congress or the Constitution itself. For rulemaking authority, Executive Order 13843 references back to Civil Service Rule VI, which permits the President to prescribe rules governing competitive service (5 U.S.C §§ 3301, 3302). While Executive bootstrapping may be particularly troubling, there is little evidence here to support aggrandizement of one branch at the expense of another, as the Civil Service Commission is an executive agency.
Moreover, Supreme Court precedent suggests that presidential actions, such as executive orders, may not be reviewed for abuse of discretion under the APA, though they may still be reviewed for constitutionality (See Franklin v. Massachusetts, 505 U.S. 788 (1992)). On its face, the order does not violate the APA as it instructs the Director of OPM to adopt regulations to implement such hiring, thus providing OPM an opportunity to adhere to the notice-and-comment rulemaking procedures of the APA.
While other Executive orders have faced lawsuits to review their constitutionality, the likelihood that Executive Order 13843 would survive such a challenge is high.