Something Topical

I don't usually write topical posts, but I just saw something that stuck in my craw. This latest executive order from the Trump administration is not good.

In a nutshell, it changes the procedures for the hiring and firing of administrative judges in a way that undermines their independence.

In the old system administrative law judges were hired from a list of "generally qualified judges" and had to go through the usual procedures of civil service hiring - competitive selection and examination, background checks, etc.

That changed.

Now agencies can simply appoint (and fire!) administrative law judges without going through any of those proceedures. The executive order justifies this change by citing a 6-3 US Supreme Court decision earlier this year that held that administrative law judges were "officers of the court" not federal employees.

All of that you could have gotten from reading the first link here. Now let me explain why this is bad. 

By volume of text, the bulk of the law in the US isn't statutory (i.e. Congress passed a law) but administrative (Congress delegated rule-making authority in some area to an executive agency, with a certain mandate). Think regulatory agencies like the EPA, the SEC, etc.

When people want to dispute fines, regulations, any matter relating to administrative law, that ends up before an administrative law judge, who is to quote Wikipedia: " a judge and trier of fact". These proceedings are bench trials (that mean no jury). 

So if the EPA alleges I poisoned Lake Michigan and fines me, and I dispute this, an administrative judge decides the punishment I'd receive if guilty, and whether or not I actually poisoned the Lake. Creating the potential for a shamelessly corrupt official to dismiss the EPA's case against me with alternative facts - or decide against me regardless of the facts.

Now administrative judges have always had this power. But before abusing this power was less of a concern - they were career civil servants, insulated from political pressures and subject to the normal constraints and scrutiny placed on civil servants - and protected from arbitrary firing like other civil servants.

Now the President or his appointees can appoint or fire them at will. Bribery is illegal, of course. But you could still sway the decisions by appointing crackpots who believe whatever B.S. passes his desk, as long its on the side of business ("Arsenic is an essential mineral", "kids need lead to grow up healthy", "humans aren't causing climate change").

TL;DR, the administration is undermining the independence of a judiciary, and creating a lot of opportunities for graft and misconduct. You don't have to be a cynic to think they'll take advantage of those opportunities.