Category Archives: Symposium on Lucia v. SEC

An Empirical Study of the Record of the SEC’s ALJs Shows That They Are Unbiased and Accountable, by David Zaring

by Guest Blogger — Friday, Apr. 6, 2018

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 […]

Chief Justice Marshall and the Appointments Clause, by Garrett West

by Guest Blogger — Friday, Apr. 6, 2018

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 […]

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 […]

Notice and Comment Online Symposium on Lucia v. SEC, Contribution by Richard J. Pierce, Jr.

by Guest Blogger — Thursday, Apr. 5, 2018

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 […]

An Exceptional Case, by Neil Kinkopf

by Guest Blogger — Wednesday, Apr. 4, 2018

SEC v. Lucia is an extraordinary case in several respects.  First, it is an Appointments Clause case.  When I worked in the Office of Legal Counsel (from 1993-1997), we handled Appointments Clause issues on an at least weekly basis.  In striking contrast, the Supreme Court has only rarely opined on the meaning of the Clause.  […]

A Shared Power to Appoint ALJs?

by Emily Bremer — Wednesday, Apr. 4, 2018@emilysbremer

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 […]

Who cares about law? Why the arguments in the amicus curiae’s brief may win the day, by Linda Jellum

by Guest Blogger — Tuesday, Apr. 3, 2018

The Supreme Court is poised to hear arguments in Raymond J. Lucia v. SEC on Monday, April 23, 2018. The sole issue for which cert was granted is whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC) are officers of the United States within the meaning of the Federal Constitution’s appointments clause. […]

Drawing Two Lines

by Aaron Nielson — Tuesday, Apr. 3, 2018@Aaron_L_Nielson

Let me begin with a confession: I’m not an expert on the meaning of the Appointments Clause. Of course, because I teach administrative law, I know the basics — I’ve read the leading cases and even some law review articles. Even so, I approach this symposium as a layman, not an expert. Yet even as […]

Ode to the Assistant Doorkeeper of the House of Representatives, by James Heilpern

by Guest Blogger — Monday, Apr. 2, 2018

In February, I submitted an amicus brief to the Supreme Court in the case Lucia v. SEC, arguing that the original public meaning of the term “Officer(s) of the United States” referred to any government employee exercising non-negligible federal power. While I submitted the brief on behalf of a fifteen corpus linguistics scholars, in a […]

The Consequences of Missing Appointments, by Kent Barnett

by Guest Blogger — Monday, Apr. 2, 2018

If the Supreme Court decides in Lucia v. SEC that the SEC’s administrative law judges are officers, what are the implications on other cases at the SEC (or similarly situated agencies)? The effect will likely differ depending on whether other cases have become final or are still pending before the agency or a court. Here, […]