Very important case involving the Appointment's Clause tomorrow (4/23/18)


https://www.supremecourt.gov/docket/docketfiles/html/public/17-130.html (Supreme Court docket #17-130)

The case name is Lucia v Securities and Exchange Commission.

Issue: Whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.

There are three main category of personnel in the Judicial and Executive Branch:

Principal Officers: This includes Cabinet Level Officers and heads of large executive branch independent agencies. It also includes significant subordinate officials in these departments. It includes all Article III Judges and Article IV Judges and Article I Judges on significant courts such as the Tax Court. It also includes Ambassadors and military officers of the rank of Major/Lieutenant Commander (O-4) and above. Principal Officers can only be appointed by the President with the advice and consent of the Senate.

Inferior Officers. This includes lower ranking subordinate officials in executive departments and independent agencies. It also includes military officers from (O1 to O3) and lower ranking diplomatic officers

Employees. This includes pretty much everybody else. Everybody on the General Schedule and Wage Schedule and the excepted service. It also includes all enlisted military and warrant officers.

The question in this case is whether Administrative Law Judges are Inferior Officers or Employees. (The question under review is whether they are “Officers” of the United States, but clearly, the specific review is whether they are INFERIOR Officers or employees. They are obviously not going to be Principal Officers.)

The Petitioner Lucia was hauled in front of an SEC ALJ for alleged securities violations. The specifics of the case are unimportant, other than the fact that the SEC ALJ can impose significant monetary punishment.

The SEC itself has conceded that ALJs are Officers within the meaning of the appointments clause. However, they were hired by what amounts to a bureaucratic process, thus they hold office in violation of the appointments clause.

I believe the Supreme Court will find that ALJs (at least in the SEC) are Inferior Officers, not employees and that since their hiring was unconstitutional, they have no authority and all proceedings presently before them and before them in the past must be vacated.

Congress must pass a new statute that places hiring of ALJs solely and exclusively in the hands of the SEC Board of Commissioners as a whole, with no intervening bureaucratic process.

This case could be highly important, as it could effect ALJs in numerous departments, though not likely Social Security ALJs, who hold much less power and discretion.

Social Security ALJs are legitimately employees. Most other ALJs should be Inferior Officers.

The link is to today’s oral arguments in this case.

Haven’t read much yet, but I did note that Justice Ginsburg in her first question gained clarification that the question was between whether these were employees or inferior officers and that principal officers was off the table from the start.