The Supreme Court has granted cert in this case, which raises the question,
"Whether the Securities and Exchange Commission’s use of administrative law judges as hearing officers in administrative proceedings violates constitutional limitations on “Officers of the United States.” U.S. Const. Art. II, § 2, Cl. 2."

Some of you probably realize that I have long been critical of the ALJ system. This case could turnout completely upside down. I will be following it closely.

What's the background of the case?

Admin law was actually a class I liked a good deal in college since the professor was phenomenal - when you can make a subject like that somewhat interesting that's saying something. Has zero relevance to my career since it was part of a minor but every now and then it's nice knowing I can pull Chevron deference out of my butt if needed.

(01-20-2018 11:35 AM)Love and Honor Wrote:  What's the background of the case?
Admin law was actually a class I liked a good deal in college since the professor was phenomenal - when you can make a subject like that somewhat interesting that's saying something. Has zero relevance to my career since it was part of a minor but every now and then it's nice knowing I can pull Chevron deference out of my butt if needed.

Lots of analyses out there online, do a search and take your pick.

Basically the issue is a different slant on the one I have discussed on here before. Disputes involving regulatory agency rules are typically adjudicated before ALJs in the agency. The executive director of the agency, or his representative, selects them, hires them, and determines their pay and promotion. But the Administrative Procedure Act allows them to act as judges to decide cases. I think there is a procedural due process issue here in that I don't see how an ALJ can qualify as the required impartial tribunal.

This case takes a different tack. Lucia says that ALJs are basically judges, and as such are Officers of the United States, who must be appointed by the president in accordance with the referenced constitutional section. If Lucia wins, this potentially puts at peril every ALJ decision in every administrative agency ever. I, no surprise, support Lucia's position. If the Court decides for Lucia, I would not expect them to apply it retroactively, but suppose the court holds that way and someone files another appeal of an older ALJ order based upon Lucia?

If the court does decide for Lucia, there would be a huge administrative nightmare. Perhaps more importantly, Trump would presumably get to appoint all ALJs. I expect SEC will use the resulting turmoil as an argument against Lucia. It will be interesting.