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 […]
Among the structural provisions contained in the Constitution, the Appointments Clause seems at first blush to be the one least susceptible to interpretive confusion. The Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all [ ] Officers of the United States” whose appointments […]
And . . . that’s a wrap. Thank you to the many commentators who participated in the Notice & Comment symposium over the past two weeks regarding the Supreme Court’s upcoming consideration of the Appointments Clause in Lucia v. SEC. The Court will hear oral argument in the case on Monday, April 23. In Lucia, […]
We begin with first principles: the Constitution created three branches of government. The legislative and executive branches are periodically checked by the electorate. To make that electoral check work for the executive branch, however, the one official actually accountable to voters, the president, is supposed to be able to supervise it. As James Madison noted […]
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 […]
The Securities and Exchange Commission (SEC), like any busy group of officials, can’t do everything itself. It has to delegate tasks. Not only is delegation inevitable, it is often wise. Delegating to others can promote agency expertise; it can preserve Commission resources for higher priorities. At the same time, delegation has its pathologies. It can […]
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 […]
My co-authors (Jacob Crump and Benjamin Lee) and I recently posted on SSRN a study we did of the original meaning of the phrase “Officers of the United States.” Our study was motivated by Jenn Mascott’s recent article in the Stanford Law Review. As part of her research, Professor Mascott performed “corpus-like analysis” on a […]
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, […]
Much of the debate in Lucia has focused on history, and more particularly on the original understanding of who counted as an officer at the founding. As Neil Kinkopf notes, this reflects in part the paucity of Supreme Court precedent on the meaning of inferior officer; it also reflects the originalist focus of many contemporary […]
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 […]
Lucia v. SEC is technically about the Appointments Clause, but really it is about unfairness. Can defendants get a fair shake in ALJ proceedings? If they can’t, there may be a reason for the Supreme Court to do something about ALJs. But if they can, then twisting and turning doctrine to undo this pillar of […]
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 […]
Four colleagues and I drafted an amicus brief on behalf of neither party that we filed on behalf of 29 administrative law scholars in Lucia v. SEC. The brief took no position on whether Administrative Law Judges (ALJs) are employees or inferior officers. It urged the Court to issue an opinion that respects the decision […]
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 […]