Lucia, Kokesh, and the Supreme Court’s Not-So-Subtle Hints to the SEC, by Daniel B. Listwa and Charles Seidell

by Guest Blogger — Tuesday, July 17, 2018

When the Supreme Court held in Lucia v. SEC that the Securities and Exchange Commission had appointed its administrative law judges in an unconstitutional manner, the focus among commentators was less on the particular agency at issue and more on the repercussions for the administrative state more generally. But, while it is true that the […]

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The Appearance of Impartiality in Lucia v. SEC , by Kent Barnett

by Guest Blogger — Wednesday, June 27, 2018

In a narrow decision, the Supreme Court held in Lucia v. SEC that the Securities and Exchange Commission’s administrative law judges are “officers of the United States.” Because they are officers, the Constitution’s Appointments Clause required the Commissioners themselves, not others within the agency, to appoint the ALJs. Upon resolving the appointments question, Lucia teed […]

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D.C. Circuit Review – Reviewed: Ten Small Thoughts About Lucia

by Aaron Nielson — Friday, June 22, 2018@Aaron_L_Nielson

If you care about administrative law judges (and who doesn’t?*), you ought to follow Kent Barnett on Twitter (ugh). He knows more about ALJs — and their cousins, administrative judges — than anyone I know. And if you care about the Appointments Clause (and, again, who doesn’t?**), you ought to follow Jenn Mascott on Twitter. […]

Conclusion: Lucia v. SEC Symposium on the Appointments Clause

by Jennifer Mascott — Monday, Apr. 16, 2018@jennmascott

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, […]

Mystery and Audacity in Lucia, by Marty Lederman

by Guest Blogger — Monday, Apr. 16, 2018

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 […]

Lucia v. SEC: Reining in the Fourth Branch, by Ilya Shapiro

by Guest Blogger — Thursday, Apr. 12, 2018

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 […]

What is Lucia About?, by Urska Velikonja

by Guest Blogger — Wednesday, Apr. 11, 2018

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 […]

(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

by Guest Blogger — Tuesday, Apr. 10, 2018

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 […]

Past, Present, and Precedent in Lucia, by Gillian Metzger

by Guest Blogger — Monday, Apr. 9, 2018

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 […]

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

by Guest Blogger — Friday, Apr. 6, 2018

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 […]