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.  Perhaps that is because the Supreme Court chooses what issues it considers and OLC does not.  In any event, the Supreme Court has said very little on the subject of the Appointments Clause and many of the most interesting Appointments Clause questions (for example, whether and to what extent Congress may impose qualifications on who may be appointed to an office) remain completely open.  Lucia then is a rare opportunity for students of administrative law and of the law of separation of powers to learn something of the Court’s mind on the Appointments Clause.

The leading Supreme Court interpretation of the Appointments Clause remains the Court’s per curiam opinion in Buckley v. Valeo.  There the Court drew the line between officers of the United States, who must be appointed in conformity with the procedures of the Clause, and mere employees, who may be appointed under alternative procedures (according to score on a civil service exam, for example).  The defining feature of an officer as opposed to an employee is that an officer exercises “significant authority under the laws of the United States.”  424 U.S. 1, 126 (1976).  Since then, the Supreme Court has said virtually nothing about what constitutes “significant authority.”  Buckley itself provided guidance by distinguishing the duties that the FEC could permissibly perform despite its commissioners not being appointed in conformity with the Clause from the duties it could perform only if its commissioners were validly appointed as officers under the Appointments Clause.  The Court determined that the FEC commissioners not appointed in conformity with the Clause could perform those limited functions that Congress itself may perform without going through bicameralism and presentment.  Thus, the FEC was allowed to perform an informational role (receiving and publishing campaign finance disclosure forms, compiling data, and making reports) but forbidden to perform any function that would alter legal rights and duties (such as by issuing “advisory opinions” that would have the legal effect of providing immunity to anyone who in good faith relied upon them).

Since Buckley, the Supreme Court has considered what constitutes “significant authority ” for Appointments Clause purposes exactly once — in its 1991 opinion in Freytag v. Commissioner of Internal Revenue.  In her introcutory post, Professor Mascott raises this case and suggests that the brief submitted in Lucia by Anton Metlitsky, the court-appointed amicus, includes “an unintentional admission that the most straightforward reading of the most directly relevant precedent — Freytag v. Commissioner — does not favor Mr. Melitsky’s side.”  This strikes me as puzzling.  Freytag held that Special Trial Judges of the Tax Court exercised signficant authority because they were specifically authorized by statute to issue final, binding decisions in certain categories of cases.  501 U.S. at 882 (Special Trial judges exercise binding authority because statute empowers them “to render the decisions of the Tax Court in declaratory judgment proceedings and limited- amount tax cases.”)   Far from “an unintentional admission,” the court-appointed amicus’s brief includes an extensive argument that Administraitve Law Judges, unlike Special Trial Judges of the Tax Court, hold no authority to bind the parties before them or the government.  See, e.g., brief at 44-51.   

Professor Mascott’s post looks to the original public meaning of the phrase “Officers of the United States.”  It is interesting, though perhaps not surprising, to note that the Court seems more inclined to turn to originalism in cases involving matters on which there is no or only sparse judicial precedent — for example, to determine the substance of the right protected by the Second Amendment (Heller) or to determine the constitutionally requisite scope of habeas corpus protection that Congress may not suspend (Boumediene v. Bush).  As the Appointments Clause is a rarely opined upon provision, Lucia offers an attractive target for originalist treatment.  In this regard, neither Professor Mascott in her post nor Anton Metlitsky in his brief is wasting their time paying attention to original meaning arguments.  Nonetheless, I hope the Court resists.  For most of its history, the Court has largely avoided resorting to originalism in separation of powers cases for anything more than evidence of general purposes.  The exceptions prove the wisdom of this course (Chief Justice Taft’s tendentious presentation of the so-called Decision of 1789 in Myers comes to mind, not to mention Justice Sutherland’s dramatic overreading of history in Curtiss-Wright).

Originalism is not the only way the Court has resolved issues where there is sparse-to-no judicial precedent.  Increasingly, the Court has placed crucial, even determinative, reliance on practice, although the pedigree of arguments from practice extends back at least to M’Culloch v. Maryland.  The Court has turned to practice to help it navigate uncharted waters in recent separation of powers cases Zivotofsky v. Kerry (determining for the first time that the President holds the recognition power and does so exclusively) and Noel Canning (addressing the Recess Appointments Clause for the first time).

As Justice Frankfurter famously put it in Youngstown: “It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’  vested in the President ….”  343 U.S. at 610-11.   More recently, in Zivotofsky for example, the Court’s approach to practice has been notably less stringent.  Executive Branch practice with respect to Administrative Law Judges, however, was uniform (at least until the new Solicitor General took office).  Administrative Law Judges and their precursors, hearing examiners, have always been understood not to be officers and Congress has never objected to this view.

One major problem with originalism as an interpretive method in lightly litigated areas such as the Appointments Clause is that originalism cannot — indeed, refuses to — account for decades, even centuries, old and deeply embedded modes of governing.  Professor Mascott, for example, notes that ALJs exercise significant authority because they can issue subpoenas.  But, recalling Buckley‘s standard, Congress itself can issue subpoenas without going through bicameralism and presentment.  On Buckley‘s reasoning, then, subpoena power does not automatically represent significant authority of the sort that transforms an employee into an officer.  Furthermore, to regard the subpoena power this way calls into question not only the validity of ALJs at the SEC; it also calls into question the validity of subpoena power held by congressional committees and who knows what other commissions and agencies.

This consideration points to the second way that Lucia is an extraordinary case.  One side of the argument is being carried not by a party but by a court-appointed amicus.  Indeed, it is hard to see how Lucia is a case or controversy at all.  It is not uncommon, particularly in separation of powers cases, for Congress and the President to have different views as to the constitutionality of a statute.  In these instances, the Court has allowed Congress to retain counsel to advocate for the validity of a statute that the President declines to defend (INS v. Chadha, for example).  In these cases, the Court recognizes the unique position of the United States as a party, with competing, co-equal branches holding different interests and different views on the validity of a statute.  In these cases, we can consider that the Court is merely recognizing the complexity of the United States as a party.  In other cases, the Court has appointed counsel to represent represent the position that the Court itself lacks subject matter jurisdiction over a particular matter (recall the Anti-Injunction Act component of the Obamacare litigation).  If the Court were unable to do so, it would enable parties to effectively conspire to waive the absence of subject matter jurisdiction in a particular proceeding.  This would go against the longstanding commitment that the Court must have constitutional and statutory authority to rule on the subject presented to it, lest it violate the constitutional limits on its power, which is the reason that subject matter jurisdiction issues may be raised at any time by any party or by the Court sua sponte.

What justifies the appointment of an amicus in Lucia?  This troubles me not out of an overwrought commitment to the “case or controversy” limit on federal jurisdiction.  My concern is that an amicus has been appointed to represent one side in this litigation, and no amicus can be in a position to do that in a way that fully comprehends all that representation entails.  I was being quite literal above when I noted that some arguments call into question the powers of “who knows what other commissions and agencies.”  I honestly don’t.  I doubt that any individual lawyer does.  When the Solicitor General defends a statute, the Office of the Solicitor General has the agencies of the executive branch at its disposal to answer these sorts of questions.  No amicus does.  Moreover, when the Solicitor General endeavors to provide a standard for what constitutes “significant authority,” the Solicitor General is in a position to discover precisely what that standard will mean for the practices of the executive branch as a whole.  Again, an amicus is not.

These are not abstract concerns.  Indeed, they seem to have weighed on Mr. Metlitsky, who seems to have taken them seriously and to have done an admirable job of trying to act as the Solicitor General would (dare I say should) have.  Metlitsky was appointed to represent the position that the SEC’s ALJs are not officers and so need not have been appointed in conformity with the Appointments Clause.  It would be enough to prevail on this point to show that ALJs do not exercise binding legal authority; that ultimately what they do is advisory and only becomes final and binding upon action by duly appointed officers of the United States.  But this position would leave exposed (to Appointments Clause challenge) other employees of the federal government who do make binding decisions in the ordinary course of doing their jobs.  FBI agents, for example.  When an FBI agent makes an arrest, or decides not to arrest someone, that is a decision with immediate and binding consequences.  This sort of enforcement decision is made countless times every day by federal functionaries who are not appointed in conformity with the Appointments Clause, and who have never been considered to be officers of the United States in the constitutional sense.

Mr. Metlitsky seems to be keenly aware of these potential ramifications.  They pervade his brief and seem to have led him to argue that significant authority involves not only the ability to take (or refrain from taking) action that has some binding force, but that this authority be exercised in the putative officer’s own name, not on behalf of a higher, supervisory officer who is ultimately responsible for how the power is exercised.  This position accounts not only for ALJs at the SEC, but for the operations of who knows how many thousands of other federal functionaries.  But there is that expression — who knows how many — again.  Mr. Metlitsky has done an outstanding job of taking account of the sorts of institutional concerns that are part of the DNA at the Solicitor General’s Office and throughout DOJ, but this is not common (and perhaps should not be expected) among lawyers in private practice.  There is real reason to worry that even the most conscientious and brilliant lawyer acting as an amicus will miss considerations that the lawyers of the executive branch are institutionally designed to be attuned to.

Neil Kinkopf is a Professor of Law at Georgia State University College of Law.

This post is part of a symposium on Lucia v. SEC. All of the posts can be read here.