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Playing by the Rules: Upward Mobility

and Administrative Law Judges

MONICA TEIXEIRA DE SOUSA

As the unsavory Trump spectacle plays out across our Nation’s


screens, and far worthier stories are relegated to the periphery, the
President’s administration steadily and quietly wages war on his
“forgotten men and women” by seeking to eliminate the prospect of any
legal decision makers with even the slightest grasp of what it means to be
working class in today’s America.1 An executive order, excepting
Administrative Law Judges (ALJs)2 from having to earn their jobs on the
basis of merit and abandoning previous requirements of seven years of
trial experience along with successful completion of an examination, was
issued on July 10, 2018.3 This means not only that the chances of a first-
generation professional securing the position of ALJ are being significantly
curtailed, but that when your loved one has to appeal a denial of their
claim for Social Security disability benefits, the likelihood of an impartial
and competent decisionmaker presiding over their case is also greatly
diminished. Now, in 2019, with a Democratic majority in the U.S. House of
Representatives, and an unprecedented number of Democratic candidates
vying for the 2020 nomination, it is important to identify and brand as
Democratic those positions on issues that will appeal to lower income
Americans, the majority of whom do not comprise the Trump base, and in
fact have historically opted out of voting altogether. 4 Re-enfranchising this

1 CNN Staff, Here's the Full Text of Donald Trump's Victory Speech, CNN (Nov. 9,
2016, 12:04 PM ET), https://perma.cc/6JWR-XGXL (declaring “[e]very single American will
have the opportunity to realize his or her fullest potential. The forgotten men and women of
our country will be forgotten no longer.”).
2 Recent Guidance, Harvard L. Rev., https://harvardlawreview.org/wp-
content/uploads/2019/01/1120-1127_Online-1.pdf, (last visited July 10, 2019) (“Administrative
judges are officials who oversee adjudications within the administrative state.” They are
appointed under 5 U.S.C. §2105 of the Administrative Procedure Act.)
3 Exec. Order No. 13843, 83 C.F.R. 32755 (2018), available at https://perma.cc/RD5R-
6PTC; compared to Office of Personnel Management, Classification and Qualification: Qualification
Standard for Administrative Law Judges, OPM.gov, https://perma.cc/BS84-2LAF (last visited
July 10, 2019)(showing previous requirements for administrative law judges).
4 Sean McElwee, Why Voting Matters: Large Disparities in Turnout Benefit the Donor

101
102 New Eng. L. Rev. Forum v. 53

civilly moribund bloc and getting them to the polls where they can cast
their vote for Democrats requires crafting a powerful narrative pitting
genuinely democratic defenders of the working class boy and girl next door
against the Republican, as well as Democratic, enablers of the Fred Trumps
and Charles Kushners of the billionaire class; those who place a
stranglehold on the American Dream each time they buy their children’s
way into elite schools, cushy jobs, and even the White House.5 A
legislative reversal of Trump’s executive order excepting ALJs from
competitive selection procedures, if carefully orchestrated, would be
certain to resonate with precisely the demographic that the Democratic
Party needs to mobilize in order to deliver a decisive victory in 2020,
thereby putting an end to the partisan stalemate likely to dominate our
national politics for the next two years.
The case should be an exceedingly easy one to make in the court of
public opinion. After all, Trump’s executive order unceremoniously
jettisons a tried-and-true system of competitive examination and service
selection procedures, a viable and transparent pathway for talented
individuals of all socioeconomic backgrounds, only to replace it with the
same hyper-partisan politicized and self-serving appointment process that
was on full display in the recent battle to confirm America’s next top
Justice. Unlike President Chester Arthur, whose personal experience with

Class, demos.org (Sept. 16, 2015), https://perma.cc/CE66-K9KR (“In 2012, 26 million eligible
voters of color did not vote, and, among eligible voters earning less than $50,000, 47 million
did not vote. In 2014, 44 million eligible voters of color did not vote, and 66 million eligible
voters earning less than $50,000 did not vote . . . . On every issue for which Demos was able to
obtain data, non-registered people were more progressive than registered people, meaning
(for our purposes here) more supportive of policies that help lower-income Americans and
those with less opportunity due to institutional and interpersonal racism.”); Nicholas Carnes
and Noam Lupu, It’s Time to Bust the Myth: Most Trump Voters Were Not Working Class, THE
WASH. POST (June 5, 2017), https://perma.cc/7J55-V3ET (analyzing a March 2016 NBC survey
of the primaries and concluded “that only a third of Trump supporters had household
incomes at or below the national median of about $50,000. Another third made $50,000 to
$100,000, and another third made $100,000 or more…” They further distilled the report to
show that “white non-Hispanic voters [in the 2016 general election] without college degrees
making below the median household income made up only 25 percent of Trump voters.”).
5 Daniel Golden, The Story Behind Jared Kushner’s Curious Acceptance Into Harvard,
PROPUBLICA (Nov. 18, 2016), https://perma.cc/53KV-LV3K ( quoting his 2006 book The Price of
Admission “reported that New Jersey real estate developer Charles Kushner had pledged $2.5
million to Harvard University in 1998, not long before his son Jared was admitted to the
prestigious Ivy League school.” Golden also quoted an official from Kushner’s private high
school. “There was no way anybody in the administrative office of the school thought he
would on the merits get into Harvard,” a former official at The Frisch School in Paramus, New
Jersey, told me. “His GPA did not warrant it, his SAT scores did not warrant it. We thought
for sure, there was no way this was going to happen. Then, lo and behold, Jared was accepted.
It was a little bit disappointing because there were at the time other kids we thought should
really get in on the merits, and they did not.”)
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graft as Collector of the Port of New York provided him with the know-
how to become a formidable champion of the civil service, President
Trump has displayed no such inclination.6 Instead, with respect to the
1,931 ALJs currently employed by the federal government, President
Trump’s executive order excepts them from complying with the 1883
Pendleton Act’s requirement that no person be appointed without having
first passed an examination.7
The president reasons that the heads of administrative agencies such as
the National Labor Relations Board (NLRB) and the Social Security
Administration (SSA) need “additional flexibility” to select those judges
who are “committed to the rule of law.”8 Yet the likely effect of eradicating
the requirements of an examination and seven years of trial experience will
be to prevent precisely such impartial arbiters of law from securing an ALJ
position. In sharp contrast to the previous practice of insulating the
independence of ALJ decision-making by centralizing the application and
competitive examination process in the federal Office of Personnel
Management (OPM), previously responsible for compiling a list of the
highest-scoring applicants from which agency heads could then select their
ALJs, this executive order seeks to give agency heads greater discretion in
hiring. The reality is that President Trump has lowered the standards so
much that any lawyer in good standing is now eligible for appointment to
the post of federal ALJ. If new appointments won’t be made on the basis of
qualifying work experience or demonstrated aptitude, what should we
expect from this new selection process? The Association of Administrative
Law Judges expects “cronyism” and adjudicators “who do the bidding of
political appointees” to replace once independent judges.9
We should prepare for future ALJ appointments in the vein of
President Trump’s initial pick for the U.S. District Court for the District of
Columbia, who became a YouTube sensation when footage of his inability
to articulate basic concepts of trial practice went viral.10 But unlike their
federal court counterparts, these administrative judges won’t be called
upon to testify before the Senate, and the public won’t learn of their
incompetence until it is too late. Although the President argues that his

6 The White House: President Barack Obama Archives, History and Grounds: Chester
A. Arthur, obamawhitehouse.archives.gov, https://perma.cc/T92Q-6U9N (last visited July 10,
2019).
7 Office of Personnel Management, E.O. 13843 Guidance, OPM.gov,
https://perma.cc/MCT3-BTD9 (last visited July 10, 2019); see Pendleton Civil Service Reform
Act, 22 Stat. 403 (Jan. 16, 1883).
8 Exec. Order No. 13843, 83 C.F.R. 32755 (2018), available at https://perma.cc/RD5R-
6PTC.
9 Congressional Record Volume 164, Number 120 (Tuesday, July 17, 2018)
10 Nola.com, Watch Trump Judicial Pick Stumble Over Sen. John Kennedy’s Basic Legal
Questions, YOUTUBE (Dec. 15, 2017), https://www.youtube.com/watch?the=wd-eYl-LiPs.
104 New Eng. L. Rev. Forum v. 53

executive order will “promote confidence in” agency adjudications, it is


difficult to imagine that the public will be reassured by the knowledge that
the ALJ deciding their Social Security Disability Insurance (SSDI) claim was
likely appointed due to their social network and predisposition to reject
valid disability claims.11
ALJs are cloaked with independent decision-making authority in
matters of vital importance to all Americans. In fact, the vast majority of
the federal government’s 1900 ALJs are tasked with adjudicating SSDI
claims. But whether they are deciding cases that pit the interests of
individuals against the weight of the federal government at the Federal
Mine Safety and Health Review Commission, the Department of the
Interior, the Department of Labor, or the Food and Drug Administration,
this is a job that calls for competence and experience. This makes it all the
more critical to safeguard a conduit that enables Americans of all socio-
economic backgrounds to ascend to the role of ALJ on the basis of merit,
thereby preserving the legitimacy and integrity of these agencies’
decisions. In order to maintain socioeconomic diversity among the body of
ALJs, it is imperative that a transparent and consistent professional
pathway remain in place.12
As we’ve been forced to witness recently, merit—to say nothing of the
American dream ideal of pulling oneself up by the bootstraps—means
nothing to the anointed in D.C.’s elite circles. Exhibit A: Supreme Court
perennial shortlister Third Circuit Judge Thomas M. Hardiman, the first in
his family to graduate college, who worked as a taxi driver in his teens and
then throughout college and law school to pay for his studies. He was on
the short list twice, but only the bridesmaid to confirmed Justices Neil
Gorsuch and Brett Kavanaugh, not incidentally two graduates of the
exclusive Georgetown Preparatory School and both the children of well-
connected lawyers, jurists, and politicians. Justice Gorsuch’s mother served
as Administrator of the Environmental Protection Agency under President
Ronald Reagan and Judge Kavanaugh’s father headed the Cosmetic,
Toiletry, and Fragrance Association for over two decades. Judge
Hardiman’s own educational trajectory through public Waltham High
School and his SCOTUS dream deferred serving as prima facie evidence that
intelligence, experience, hard work, and grit will only get you so far in this

11 Trump Executive Order Will Hurt Social Security Disability Claimants, National
Committee to Preserve Social Security and Medicare (Jul. 18, 2018), https://perma.cc/rpk5-
hfdw (Marilyn Zahm, the president of the Association of Administrative Law Judges was
quoted as saying “They could hire candidates who have a certain view of claims under the
disability provisions of the Social Security Act, and that the view perhaps would be that
claims ought to be denied.”).
12 These are lessons applied by all those who seek to hire a diverse workforce.
NADOHE, Evidence Based Strategies for Recuiting a Diverse Faculty, NADOHE.org (Sept. 2,
2009), available at https://perma.cc/3A9B-CNR9.
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American life.
There is more than a little irony in the current administration’s position
that the recent U.S. Supreme Court decision in Lucia v. SEC13 necessitates
the dramatic step to undermine a century-old law, an opinion
unsurprisingly also held by the Federalist Society, the very entity whose
former executive vice president, Leonard Leo, helped compile a list of
potential Supreme Court picks for President Trump.14 Both Neil Gorsuch
and Brett Kavanaugh were on this list.15 It seems as though one of Mitch
McConnell’s self-described “proudest moments” is paying dividends; first,
stack the Supreme Court with conservative jurist Neil Gorsuch after
blocking President Obama’s nomination of Merrick Garland, and then
enlist said conservative jurist in helping to stack the federal administrative
tribunals with appointees cut from the same cloth.16 Even right-leaning
publications agree that Trump’s dramatic executive order was not
necessitated by the Court’s decision, and yet celebrate what it appears to
promise for the future, nothing short of Justice Breyer’s nightmarish
prediction that the case threatens to “unravel[], step-by-step, the
foundations of the Federal Government’s administrative adjudication
system as it has existed for decades.”17
Well, that’s heartening. The good news is that some elected officials
have taken notice of President Trump’s latest attack on meritocracy, and
have already commenced the hard work to seek a legislative fix to the
attack he unleashed on the independence and competence of the ALJs.
First, Representatives Elijah Cummings (D-MD), David Cicilline (D-RI) and
Bobby Scott (D-VA) introduced an amendment that would have blocked
the funds necessary to implement Trump’s order.18 However, their effort
was impeded when a majority on the Rules Committee refused to even
allow a vote or debate on the amendment to be conducted on the House
floor.19 Fortunately, due to Representative Jim McGovern (D-MA) having

13 Lucia v. SEC, 138 S. Ct. 2044 (2018).


14 The Federalist Society, The ALJ Executive Order: A Modest Step Towards Re-Integrating
the Executive Branch (July 24, 2018), available at https://perma.cc/8RAU-V9CL; Joel Achenbach,
How Trump and Two Lawyers Narrowed the Field for His Supreme Court Choice, WASH. POST (July
8, 2018), available at https://perma.cc/9C2T-DGYH.
15 Id.
16 Ron Elving, What Happened with Merrick Garland in 2016 and Why it Matters Now,
NAT’L PUBLIC RADIO (July 29, 2018), available at https://perma.cc/JCP4-GLVG (“In a speech
that August in Kentucky, McConnell would say: ‘One of my proudest moments was when I
looked Barack Obama in the eye and I said, 'Mr. President, you will not fill the Supreme Court
vacancy.'").
17 Ed Whelan, Today’s Ruling in Lucia v. SEC, NAT’L REVIEW (June 21, 2018), available at
https://perma.cc/9J4Q-3QQC.
18 164 CONG. REC. 120 ( July 17, 2018).
19 Id. (“Representatives Elijah Cummings, David Cicilline, John Larson, and I filed an
106 New Eng. L. Rev. Forum v. 53

yielded 5 minutes of his time to Rep. Scott, the legislative record includes
not only the Democratic representatives’ reasons for objecting to the
President’s executive order, but also opposition letters from the Federal
Administrative Law Judge Conference, the Association of Administrative
Law Judges, the American Association for Justice, and the American Bar
Association (ABA). Rep. Scott read into the record the ABA’s solemn
warning that “[n]othing less than the integrity of the administrative
judiciary is at issue here.”20 Justice Kagan’s position in the case also raised
eyebrows, prompting a Slate columnist to critique the Justice for
“author[ing] the majority opinion in Lucia v. SEC, a huge case that
threatens to erode the political independence of multiple federal agencies.
Tearing down the “administrative state” is supposed to be Justice Neil
Gorsuch’s pet project. In Lucia, though, it was Kagan who took the lead in
undermining the civil service, authoring an opinion that prompted a
sharp dissent by Justice Sonia Sotomayor, who accused her colleague of
making legal and factual errors.”21
In late July, U.S. Senators Elizabeth Warren (D-MA), Chris Van Hollen
(D-MD), Sherrod Brown (D-OH), and Patty Murray (D-WA) filed an
amendment to the Financial Services and General Government
Appropriations Act, in an effort to block the implementation of the
executive order issued by President Trump. 22 Although that effort was also
unsuccessful, the following month Senators Maria Cantwell (D-WA) and
Susan Collins (R-ME) introduced S. 3387, a bill that would restore ALJs to
the competitive service managed by the Office of Personnel Management. 23
This bill was given a 2% chance of being enacted, numbers that likely
haven’t improved, at least on the Senate side, since the midterm elections. 24
More recently, Congress added hortatory language to its conference
report on H.R. 4167, a fiscal year appropriations bill signed into law on
September 28, 2018.25 Although lovely in its sentiment regarding the need
for ALJs to be “independent, impartial, and selected based on their

amendment to defund the executive order and preserve the impartiality, independence, and
competence of administrative law judges. Unfortunately, the majority on the Rules
Committee has refused to allow Members of Congress to vote on or even debate our
amendment.”).
20 Id.
21 Mark Stern, Elena Kagan is Up to Something: Is the Liberal Justice Drifting to the Right,
or is She Playing the Long Game with her Conservative Colleagues?, SLATE (June 21, 2018), available
at https://perma.cc/3QRU-6PGB.
22 Elizabeth Warren, Warren, Colleagues Move to Block Politicization of Administrative Law
Judges, Warren.Senate.Gov (July 27, 2018), https://perma.cc/F9XG-34PB.
23 S. 3387, 115th Cong. (2d Sess. 2018), available at https://perma.cc/KA3J-8UW9.
24 Id.
25 Department of Defense and Labor, Health and Human Services, and Education
Appropriations Act, 2019 and Continuing Appropriations Act, 2019, H.R. 6157, 115th Cong.
(2018).
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qualifications,”26 it is far from a solution to the problem created by Trump’s


executive order.
The House, along with serious contenders for the Democratic
presidential nomination, may wish to continue the charge, publicizing the
problem until a majority of Democratic, and Republican, senators agree. The
refrain must be that it isn’t a red state or blue state issue, but rather a blue
collar vs. white collar concern. A meritocratic system of ALJ appointments
supports the American dream, while Trump’s approach seeks to further
enhance the opportunities available to the over-privileged few, not the
strivers with whom most Americans identify. Whether the President
ultimately succeeds in this effort to stack the federal administrative
tribunals with political appointees will largely depend on the American
public taking notice of the issue and placing pressure on their elected
officials to join the fight to preserve the independence of ALJs. This is not a
battle we can afford to lose.

26 Id.