Donald Trump’s latest executive order seems humdrum at first glance; at second, it’s catastrophic.
On June 21, the Supreme Court decided SEC v. Lucia, a case surrounding the process by which administrative law judges land their lifetime jobs and the nature of the role they perform. Traditionally, ALJs have been treated as employees and selected through a rigorous, lengthy competitive application process. In Lucia, the court ruled that ALJs should be considered “inferior officers” rather than employees, which means they must be appointed rather than selected.
Lucia rested on two findings: SEC ALJs receive a career appointment to a position created by statute, and ALJs get to exercise significant discretion in carrying out important functions, i.e., conduct trials, rule on evidence admissibility, and enforce compliance. That’s true of many ALJs across agencies who perform critical agency-specific roles like determining if there’s been a Fair Housing Act violation or whether to grant an immigrant asylum. Their rulings are often final.
Yep. Immigration judges, called IJs, are also ALJs. These are the people who make life-and-death decisions regarding immigrants’ lives and futures. They’re the ones performing the review of family separation cases. And right now, there’s a massive backlog of immigration cases. The National Association of Immigration Judges even publicly stated the need to expedite hiring in late June. There are just 350 at the moment.
Barely three weeks later, Donald Trump has solved the hiring slowdown by issuing a sweeping executive order citing Lucia and declaring that all ALJs will now be political appointees rather than selected. To call it a boon for the Trump administration, and the GOP, would be a radical understatement. They’ve just been handed the opportunity to appoint ALJs based on their own, totally political criteria, rigging the immigration law system.
Because things could always be worse, Lucia also gives Trump grounds to argue for the removal of current ALJs selected through the old process. We can only wait and see.