Appointments Clause Symposium on Lucia v. SEC: Are SEC ALJs “Officers of the United States”?

by Jennifer Mascott — Monday, Apr. 2, 2018@jennmascott

Starting today, for the next two weeks the Notice & Comment blog will run a symposium addressing the Supreme Court’s upcoming consideration of the constitutionality of hiring procedures for administrative law judges in the Securities and Exchange Commission. On Monday, April 23, the Supreme Court will hear oral argument in Lucia v. SEC, which raises this structural constitutional issue with potentially significant impact on adjudicative procedures in administrative agencies. The case presents the first time in close to thirty years that the Supreme Court will have occasion to reexamine the meaning of the Appointments Clause`s reference to “Officers of the United States.” (See U.S. Const. art II, § 2.) If the SEC’s ALJs are “officers,” they must be appointed by the president, the SEC Commissioners, or a court of law–not by staff. (For more background on the legal issues in the case, see here and here.)

The symposium will consist of at least two blog posts a day by a group of contributors that includes leading Appointments Clause and administrative law scholars as well as experts who have filed amicus briefs in the case. The first post later this morning is by Professor Kent Barnett of the University of Georgia–the first scholar to comprehensively question the constitutionality of aspects of the current hiring process for administrative law judges. His post today will address potential remedial issues if the Supreme Court concludes that SEC ALJs are subject to Appointments Clause requirements.

Following is the complete list of symposium contributors presenting a diverse collection of viewpoints on the case. At the conclusion of the symposium, the blog analysis by this all-star lineup will be posted in a PDF publication available on SSRN.

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; & David Zaring, University of Pennsylvania
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

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Jennifer Mascott

Jennifer Mascott is an Assistant Professor of Law at George Mason's Antonin Scalia Law School where she teaches and writes in the areas of administrative law, constitutional law, and the separation of powers. She is a public member of the Administrative Conference of the United States. Previously she served as a law clerk to Justice Clarence Thomas and to D.C. Circuit Judge Brett Kavanaugh. Follow her on Twitter @jennmascott. Her scholarship is here: http://ssrn.com/author=2653151.

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