Social Security is (Maybe) Changing How it Hires Judges

The majority of claims for Social Security disability benefits are awarded by administrative law judges (or ALJs).

These judges are typically attorneys who have spent several years practicing Social Security law. Many have worked for the Social Security agency in some capacity, or come from other government agencies.

Unlike judges in the federal courts, ALJs are not political appointees.

Historically, these judges have been hired by the Office of Personnel Management using a competitive process that involves both written tests and in-person interviews. Even if they received a high enough score, prospective ALJs would be placed on a register to possibly receive a final interview if they were willing to work for a certain agency in a specific location.

But a recent Supreme Court decision, Lucia v. Securities and Exchange Commission, has now called that process into question.

In a 7-2 decision, the court held that under the Constitution’s appointment clause, administrative law judges for the SEC must be appointed by the president or a delegated officer and that it is unconstitutional to hire them.

While the Lucia decision applied specifically the SEC judges, it is likely that it would also apply to Social Security ALJs if it was challenged.

Two Senators, Maria Cantwell, D-Wash., and Susan Collins, R-Maine, have introduced a bill to make hiring ALJs a competitive process that would still be overseen by the Office of Personnel Management and then defer final approval to the head of an agency, which would be in line with the Lucia decision.

In the meantime, it’s unclear exactly how Social Security will choose ALJs. President Trump has signed an executive order assigning hiring to individual agencies, but these agencies currently have no such hiring processes in place, leaving the entire process in limbo for now.