In Lucia v. SEC, 138 S. Ct. 2044 (2018), the Court held that Administrative Law Judges (ALJs) at the SEC are inferior officers rather than employees. That holding probably means that all 2000 ALJs and many thousand administrative judges (AJs) are inferior officers. In Edmond v. U.S., 520 U.S. 651 (1997), the Court held that […]
Today the Third Circuit issued an opinion regarding application of exhaustion requirements to Lucia v. SEC, 138 S. Ct. 2044 (2018), challenges to Social Security Administration ALJs – Cirko v. Commissioner, 2020 WL 370832. Lucia decided that the SEC’s ALJs were officers of the United States, and thus that their appointments were unconstitutional because the […]
The Supreme Court issued its opinion in Lucia v. SEC on June 21, 2018. The Lucia Court held that “the [Securities and Exchange Commission’s] ALJs are Officers of the United States, subject to the Appointments Clause” and not “simply employees of the Federal Government.” The SEC’s ALJs are “Officers of the United States” because they […]
Apologies: This is a quick post; I’m traveling this week. Summers in the D.C. Circuit are busy. And it is now summertime. We have eleven opinions this week. Before getting to those cases, however, I want to discuss an update on a case that bounced around within the D.C. Circuit for a while before it […]
In Lucia v. SEC, 138 S.Ct. 2044 (2018), the Supreme Court held that administrative law judges (ALJs) are officers of the United States, not employees. Therefore, their appointment must accord with the Appointments Clause of the Constitution. Article II, Section 2, clause 2. No one suggested they were principal officers, who must be appointed by […]
As part of a terrific Iowa Law Review Administering Patent Law Symposium, I have spent some time thinking about the constitutional tensions in agency adjudication after the Supreme Court’s decisions last Term in Lucia and Oil States. I’ve just posted a draft of that essay to SSRN. One thing that somewhat surprised me in working through […]
Readers of Notice & Comment are undoubtedly familiar with Lucia v. Securities and Exchange Commission, in which the Supreme Court held that Administrative Law Judges (ALJs) in the SEC were inferior officers, not employees. As a result, they had to be appointed in accordance with the Appointments Clause of the Constitution. In relevant part, that […]
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 […]
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 […]
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. […]
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 […]
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 […]
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 […]