Notice & Comment

Symposium on Lucia v. SEC

Notice & Comment

Mystery and Audacity in Lucia, by Marty Lederman

How to explain Lucia v. SEC? The question presented—whether the Constitution requires the Securities and Exchange Commission itself to appoint its ALJs, rather than delegating that appointment authority to its Human Resources Department—is as a practical matter obsolete, because the agency has now adopted the view, rightly or wrongly, that the Commissioners themselves must do […]

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What is Lucia About?, by Urska Velikonja

The question presented in Lucia v. SEC is a limited question with, as Kent Barnett told us at the beginning of this symposium, limited implications. Cases that have been decided will not be affected. Prospectively, the Appointments Clause issue can be resolved with a stroke of each agency’s pen, much like the SEC did in […]

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(If the Supreme Court Agrees) The SG’s Brief in Lucia Could Portend the End of the ALJ Program as We Have Known It, by Jeffrey S. Lubbers

My symposium entry is an updated version of my February 26, 2018 post to this blog. I should also note that I signed the amicus brief authored by Professor Pierce and his colleagues, primarily because it urges the Court not to agree with the SG’s brief concerning removal protection for ALJs.]  Anyone interested in preserving […]

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The Inferior (Subordinate) Officer Test and the Officer/Non-Officer Line, by Tuan Samahon

I concur with Professor Aaron Nielson’s blog post, “Drawing Two Lines,” that there are two sets of lines to be managed under the Appointments Clause: (i) the line between principal and inferior officer and (ii) the line between officers and non-officers, or to use the nineteenth-century French loan word used to describe that remainder category, […]

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The Untold Story of Lucia v. SEC: The Constitutionality of Agency Adjudications, by Ilan Wurman

In this symposium on Lucia v. SEC, most of the posts have, quite rightly, discussed what Lucia is actually about—whether ALJs are inferior officers for purposes of the appointments clause to the Constitution. And although the question is not before the Court, if they are inferior officers then that raises intriguing questions about for-cause removal […]

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Chief Justice Marshall and the Appointments Clause, by Garrett West

Lucia v. SEC seems set to give some content to Buckley v. Valeo’s cryptic distinction: while officers exercise “significant authority under the laws of the United States,” employees are just “lesser functionaries.” Since Buckley, the Court expanded its analysis again in Freytag, but the employee-officer distinction still remains ill-defined. What’s so strange about both Freytag […]

Notice & Comment

A Shared Power to Appoint ALJs?

A key question on every adlaw geek’s mind is how the Supreme Court’s decision in Lucia might affect the process for appointing Administrative Law Judges (ALJs).  What if the Supreme Court holds that ALJs are inferior officers who must be appointed in compliance with Article II’s Appointments Clause?  What implications, if any, would this have for […]