Much of the debate in Lucia has focused on history, and more particularly on the original understanding of who counted as an officer at the founding. As Neil Kinkopf notes, this reflects in part the paucity of Supreme Court precedent on the meaning of inferior officer; it also reflects the originalist focus of many contemporary attacks on current administrative arrangements, as well as of recent leading scholarship on the Appointments Clause.

Yet the history of who counted as an officer at the founding doesn’t support the conclusion that SEC ALJs are constitutional “Officers,” as some have suggested. To begin with, while some early officials performing seemingly trivial tasks were appointed via Appointments Clause procedures, others given significant responsibilities by statute were not. A prime example of the latter is the First Congress’s creation of several deputy positions, such as deputy marshals, collectors, naval officers, and surveyors. These deputies were authorized to perform all the statutory duties of their principals, but were hired by those principals and not in accordance with the Appointments Clause.

To be sure, as Jennifer Mascott emphasizes, these statutes also required principals to assume personal liability for their deputies’ actions. However, that feature (which reflected the early importance of personal liability actions to holding officials legally accountable) does not alter the fact that these deputies were government officials who—in words of the Supreme Court in a later case involving deputy marshals—“exercise[d] great responsibility and discretion” yet were not considered to be officers. Steele v. United States, 267 U.S. 505, 508 (1929). Mascott also has underscored that some other deputies who were appointed in keeping with the Appointments Clause were statutorily assigned their own duties independent of their principals. Hence, as a scholars brief I helped write argues, the deputies example is in line with a broader theme running through national practice over time: government officials acting as agents of, and subordinate to, constitutional officers are not considered officers themselves despite retaining significant day-to-day responsibility and discretion. The SEC’s ALJs are no different. Though they exercise significant responsibility, they act as agents of the SEC and only the decisions of the SEC may be challenged in an Article III court.

Moreover, the originalist question is not simply who the framers and ratifiers thought were officers, but who they would think qualified as officers in the context of our modern national government—a government of a size and scope unimaginable in their day. Answering this counterfactual requires attention to the Appointments Clause’s purposes of ensuring public accountability by “preventing the diffusion of the appointment power,” Freytag v. Comm’r, 501 U.S. 868, 878 (1991), while also taking account of “administrative convenience” with respect to inferior officers, Edmond v. United States, 520 U.S. 651, 660 (1997).

These purposes cast real doubt on any definition of officer that would encompass a vast swath of government employees not currently viewed as having officer status. At best, such a definition would result in pro forma appointments across the government. Far worse, it could cause a massive disruption in the government’s ability to operate, given that unless Congress has provided otherwise, even inferior officers must be presidentially nominated and Senate confirmed. Such a destructive result simply can’t be squared with the accountability and functional concerns of the Clause, let alone the Constitution’s broad grant of power to Congress to structure the federal government, U.S. Const. art. I, § 8, cl. 18.

By contrast, the definition of officer offered by the court-appointed amicus—under which an officer is someone who occupies a “continuing position established by federal law” and “has been delegated (i) the power to bind the government or private parties (ii) in her own name rather than in the name of a superior officer”—conforms both to history and to these functional concerns. It captures the example of deputies at the founding and accords with longstanding historical practice. It preserves accountability and reflects the Constitution’s structural emphasis on supervision within the executive branch. And it fits with repeatedly-cited Supreme Court precedent like United States v. Germaine, which rejected officer status for individuals identified as agents or subordinates.

Importantly, this definition also works with the Supreme Court’s decision in Freytag, in which the Court held that Tax Court special trial judges were inferior officers. Unlike the SEC’s ALJs, the judges in Freytag had power to issue final and binding decisions in some cases, and their proposed findings and opinions in other cases were deemed presumptively correct by rule. Indeed, this presumptive correctness was a central concern of the justices during oral argument in Freytag—as Chief Justice Roberts well knows, for he was the Deputy Solicitor General arguing that the judges’ tasks of issuing proposed findings and opinions could be performed by employees. No such presumptive correctness exists here; on the contrary, ALJ findings and opinions are subject to de novo review by agency heads under the Administrative Procedure Act. 5 U.S.C. § 557(b).

The Court thus could adopt the amicus’s view while affirming Freytag. But Freytag is a precedent that deserves to go. Freytag’s suggestion that anyone who “exercises significant discretion” or “perform[s] more than ministerial tasks” is an officer is hard to square with the example of deputies and other historical precedent. Read broadly, it could sweep up a huge portion of the current federal workforce into the category of inferior officer, bringing potential chaos in its wake. As a result, just like broad originalist officer definitions, Freytag at its most extreme is incompatible with both modern-day government and the Appointments Clause’s history and purposes. Having already partially overruled Freytag in Free Enterprise Fund v. PCAOB, the Roberts Court could do the Appointments Clause a great service and overrule Freytag in full.

Gillian Metzger is the Stanley H. Fuld Professor of Law at Columbia Law School and the Bruce Bromley Visiting Professor of Law at Harvard Law School.

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