Notice & Comment

Upcoming Symposium, 4/2-4/13: The Supreme Court’s Consideration of Whether SEC ALJs are “Officers” Subject to Appointments Clause Requirements (Lucia v. SEC)

Regular readers of this blog may have been following along with us here at “Notice and Comment” as we have reported on the twists and turns of litigation challenging the constitutionality of hiring procedures for administrative law judges in the Securities and Exchange Commission. On April 23, the litigation’s fascinating path will culminate in Supreme Court oral arguments in Lucia v. SEC, in which the Supreme Court will take its first concentrated look in close to thirty years at the meaning of the Appointments Clause phrase, “Officers of the United States.” If the SEC’s ALJs are such “officers,” they must be appointed by the President with Senate consent, the President alone, a department head, or a court of law under the text of the Appointments Clause. U.S. Const. art. II, § 2. Mr. Lucia’s core claim, in particular, is that the SEC’s ALJs are “inferior officers” within the scope of Article II, meaning that ALJs must at a minimum be appointed by the head of the SEC, the Commissioners—not by staff.

The case started out simply enough in the federal court system, with the D.C. Circuit in August 2016 applying prior circuit precedent, Landry v. FDIC, to find that the ALJs are not Article II “officers” because they cannot, on their own, issue final adjudicative decisions for the SEC. But in December 2016, the Tenth Circuit squarely disagreed, concluding that the D.C. Circuit has repeatedly misinterpreted the Supreme Court’s 1991 decision in Freytag v. Commissioner, which found only that “officers” must have discretion in handling important matters—at least according to the Tenth Circuit. In May 2017, the D.C. Circuit sat en banc to reconsider its earlier decision but split evenly, resulting in the reaffirmance of the original August 2016 panel decision in favor of the SEC. Predictably, Mr. Lucia filed a petition for certiorari highlighting the important and clear circuit split. But in November 2017, the case really got interesting. When the government’s brief in the case came due, instead of filing the typical brief in opposition to Supreme Court review, the government filed a brief suggesting that the Supreme Court should hear the case—and contending that it agreed the SEC’s procedures for selecting ALJs were indeed unconstitutional. Further, the government also now argues that removal procedures for SEC ALJs raise constitutional concerns.

This summary just scratches the surface of the many interesting developments in the case. For example, since the government’s submission of its initial cert-stage brief, the SEC has tried to constitutionalize its ALJ selection procedures, with the Commissioners attempting to ratify the earlier staff-level ALJ appointments. Will this have any impact on the Court’s remedy in the case if the Court agrees with Mr. Lucia that the ALJ in his case was unconstitutionally appointed? And, now that the government has put in play both removal and appointments questions related to ALJs, what possible implications might this case have for the future independence of agency adjudicators?

To help unpack potential answers to these questions, as well as provide analysis of the core claim that ALJs are “Officers of the United States,” the Notice and Comment blog has assembled an outstanding slate of contributors for a two-week symposium on the issues at play in Lucia v. SEC. We hope you’ll tune in with us starting next Monday, April 2, for a pair of daily morning and afternoon blog posts, contributed by scholars with a wide range of viewpoints on the case. The list of contributors includes leading Appointments Clause and administrative law scholars, as well as individuals who have filed Supreme Court briefs in this litigation or provided public commentary on the case. The schedule of contributions is as follows:

Monday, 4/2: Kent Barnett, University of Georgia & James Heilpern, Fellow, Brigham Young University
Tuesday, 4/3: Aaron Nielson, Brigham Young University & Linda Jellum, Mercer University
Wed, 4/4: Emily Bremer, University of Wyoming & Neil Kinkopf, Georgia State University
Thurs, 4/5: Richard Pierce, George Washington University & Chris Walker, Ohio State University
Fri, 4/6: Ilan Wurman, Fellow, Stanford University & Garrett West, Student, Yale University
Mon, 4/9: Tuan Samahon, Villanova University & Gillian Metzger, Columbia University
Tues, 4/10: Jeffrey Lubbers, American University & James Phillips, PhD Candidate, UC-Berkeley
Wed, 4/11: Urska Velikonja, Georgetown University & Jennifer Nou, University of Chicago
Thurs, 4/12: Ilya Shapiro, Cato Institute & Marty Lederman, Georgetown University
Fri, 4/13: Aditya Bamzai, University of Virginia & Jennifer Mascott, George Mason University

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