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, an administrative law judge in the Securities and Exchange Commission (SEC) found during agency adjudication that Mr. Lucia and his company should be subject to $300,000 in civil penalties and Mr. Lucia should receive a lifetime industry bar based on the ALJ’s findings of securities law violations. The core question before the Court is whether the ALJ exercised the “significant authority” of an “officer of the United States” during the adjudication. (See Supreme Court precedent in Buckley and Freytag and the original D.C. Circuit decision below, which discuss the “significant authority” officer standard.) Article II of the Constitution requires government officials who qualify as “Officers of the United States” to be appointed by the President with Senate consent, “the President alone,” a “Court[] of Law,” or the “Head[] of [a] “Department[].” (See the full Appointments Clause text.)

Throughout the course of the symposium, we have heard from scholars representing a wide range of viewpoints on the case and the derivative issues it raises regarding agency adjudication. Several commentators have analyzed the original meaning of the Appointments Clause’s reference to officers. (See James Heilpern & James Phillips & my earlier article that their posts discuss.) Others have addressed the significance of Supreme Court precedent and several examples of early appointments practices (See Aditya Bamzai, Linda Jellum, Niel Kinkopf, Gillian Metzger, & Garrett West, some of whom respond to the Court-appointed amicus’s brief in the case & my earlier commentary here).

Aaron Nielson and Tuan Samahon discussed whether Supreme Court precedent on the dividing line between “principal officers” and “inferior officers” has significance for discerning the distinct line at issue in Lucia between inferior officers and lower-level employees free from Appointments Clause limits. Ilya Shapiro discussed tenure protections for ALJs. Emily Bremer discussed the role of the Office of Personnel Management in hiring ALJs. Urska Velikonja and David Zaring discussed empirical evidence related to SEC enforcement actions brought initially within the agency as opposed to federal court. Kent Barnett analyzed issues related to remedies for Appointments Clause violations. Marty Lederman suggested the Court should not reach the merits of the Appointments Clause claim in the case and discussed the Solicitor General’s Lucia briefs. And Jennifer Nou analyzed statutory issues related to the SEC’s initial subdelegation of its authority to appoint ALJs. Finally, several commentators have addressed adjudicative independence and the role of agency adjudication in general. (See posts by Jeffrey Lubbers, Richard Pierce, Chris Walker, and Ilan Wurman.)

Thank you for joining us for the symposium. Within several weeks the collection of posts will be published on SSRN.

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

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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