Missing History in the Court-Appointed Amicus Brief in Lucia v. SEC

by Jennifer Mascott — Wednesday, Mar. 28, 2018@jennmascott

This week the amicus appointed to advocate for the lower-court judgment in Lucia v. SEC filed his brief. The case addresses whether administrative law judges in the SEC are Article II “Officers of the United States” subject to the Constitution’s Appointments Clause requirements. U.S. Const. art. II, § 2. Court-appointed amicus, Mr. Metlitsky, technically supports no party in the Supreme Court litigation because Mr. Lucia and the government both agree that SEC ALJs are Article II “officers.” Chief Justice Roberts appointed Mr. Metlitsky to argue the opposing view. And valiantly he does in a clever, clearly written brief.

Mr. Metlitsky’s brief spends some time addressing recent Supreme Court precedent interpreting the Appointments Clause. But the brief also devotes a surprising amount of attention to amicus’s understanding of the history of the Appointments Clause. (Perhaps this is an unintentional admission that the most straightforward reading of the most directly relevant precedent—Freytag v. Commissioner—does not favor Mr. Metlitsky’s side.)

I’m all for devoting a great deal of attention to the historical meaning of the phrase “Officers of the United States.” But amicus’s history tells an incomplete story.

For example, the brief contends that one can be an “officer” only if the government takes binding action impacting private rights in the official’s “own name.” As an initial matter, amicus cites no language indicating the Supreme Court has ever limited the class of Article II “officers” to those who take final action in their own name binding the government or altering private rights. The brief does lift the phrase “altering the legal rights, duties and relations of persons” from INS v. Chadha—the legislative veto case. But Chadha explicitly uses the phrase to define the content of legislative power—not to make a statement about the Appointments Clause or the constitutional officer/employee dividing line. Technicalities.

Further, amicus attempts to draw support for the binding-acts-in-her-own-name line by relying on early practice from the First Congress. But amicus omits reference to officials from that time who were treated as officers without any indication they had authority to finally bind the government or alter anybody’s rights. For example, recordkeeping clerks who kept track of revenue receipts or kept a register of interest on debt were treated as Article II officers. (See Part III.A, Who are “Officers of the United States?”.) Officials as varied as lighthouse keepers, internal revenue inspectors, and mates on revenue ships also were selected in compliance with the Appointments Clause.

Amicus’s suggestion that “officers” must bind parties in their “own name” has even less support. For this argument amicus relies on certain subsets of deputy officials from early in history who were not even viewed as separate governmental actors due to the specific relationship between these deputies and their principals regarding legal liability for official acts. (See Part III.B, Who are “Officers of the United States?”.) Amicus references the deputies but engages in no discussion of the specific statutory provisions regarding liability that seem to have led to the deputies’ unique status. Amicus also glosses over the multiple categories of deputies who apparently were considered “officers” during the first few Congresses—deputy postmasters, deputy quartermasters, and deputies to the apothecary general who helped maintain military medical equipment.

Even beyond amicus’s incomplete discussion of early practice, amicus’s brief omits any reference to the historical evidence of the eighteenth-century public meaning of the phrase “Officers of the United States.” Numerous Founding-era ordinary-language and legal dictionaries associate the idea of “officer” with the carrying out of a governmental duty. Duty—an “officer”-related standard that the Supreme Court has paid homage to in past Appointments Clause cases. (See p. 6, Mascott amicus brief (discussing cases)); see also Buckley v. Valeo (observing that from the earliest constitutional drafts, the phrase “Officers of the United States” had “embrace[d] all appointed officials exercising responsibility under the public laws of the Nation”). Significant historical evidence suggests that the original public meaning of the Appointments Clause encompassed every federal executive official with ongoing responsibility to carry out a statutory duty. SEC ALJs perform tasks that Congress assigned to the Securities and Exchange Commission. See 15 U.S.C. § 78d-1(a); 17 C.F.R. §§ 200.14, 200.30-9. So the SEC’s ALJs would be “officers” under this test.

There are a couple of additional complications with amicus’s historical discussion. Amicus contends that an English case from 1700 supports the view that officers must have final authority to bind the government. But amicus does not mention the case’s assertion that “every man is a publick officer who hath any duty concerning the publick; and he is not the less a publick officer where his authority is confined to narrow limits because ’tis the duty of his office, and the nature of that duty, which makes him a publick officer, and not the extent of his authority.” (See p. 483, n.212, Who are “Officers of the United States?”.) Also, amicus misreads the Supreme Court’s decision in United States v. Germaine to state that ninety percent of government employees are non-officers. But Germaine was a case analyzing individuals without any continuing governmental position—essentially a class of non-employee government contractors who all parties to the litigation appear to agree are non-“officers.”

Nonetheless, if advocates insist on arguing that only government officials who have final authority to bind private parties may be “officers,” it bears pointing out that SEC ALJs still qualify as “officers” under such a test. As Mr. Metlitsky acknowledges, SEC ALJs, for example, have authority to issue subpoenas. 17 C.F.R. § 201.111. He says this is not dispositive because ALJs must enlist the assistance of a court to enforce compliance with their subpoenas. But is having the authority to enforce discipline really the threshold standard for engaging in a binding governmental act? An ALJ-issued subpoena is a government-authorized mandate for a party to appear or hand over information. The ALJ’s subpoena creates the obligation for a party to comply. Further, even if authority to punish were somehow the trigger for binding governmental power, Mr. Metlitsky says the ALJs have disciplinary authority of certain kinds—they can exclude an offender failing to comply with a subpoena “from the hearing room or preclude her from representing a party in the proceeding.” See also 17 C.F.R. § 201.180(a)-(c).

This post touches on only several points from Mr. Metlitsky’s in-depth brief. I assume the litigators in this case will have more to say on the overarching arguments that Mr. Metlitsky raises in favor of the D.C. Circuit’s judgment below. But if those remaining points from the Court-appointed brief are no more deeply rooted than the ones addressed here, I’d say Mr. Lucia has a fairly clear path forward in this case.

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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