Briefs Filed In Lucia Case

     All of the amicus briefs, 23 of them, have been filed in Lucia v. S.E.C., the case pending before the Supreme Court on the question of whether Administrative Law Judges (ALJs), as presently appointed, are constitutional, at least at the S.E.C.
     Many readers will be interested in the amicus brief filed by the National Organization of Social Security Claimants Representatives (NOSSCR). It argues that if the Supreme Court is going to find S.E.C. ALJs unconstitutional, it should distinguish Social Security ALJs on the grounds that the cases they hear are non-adversarial. That's the argument NOSSCR pretty much has to make.
     The amicus brief that I like best is one filed by a group of 29 law professors who teach and write about administrative law. That brief calls upon the Supreme Court to be pragmatic. It gives a wider and deeper administrative law perspective largely absent from all the other briefs filed in the case. Here are a couple of excerpts:

The Court’s holding and approach in this case have major implications for the adjudicative structure of the federal government. If the Court were to apply the Tenth Circuit test [that found ALJs to be unconstitutional] to the five SEC ALJs as the basis for a holding that they are inferior officers, federal courts would be required to apply the same test to the 1,926 ALJs who perform analogous functions at other agencies. And it would almost certainly trigger similar challenges to decisions made by the thousands of non-ALJ adjudicators (often referred to as administrative judges or AJs) who perform analogous functions at other agencies. Together, ALJs and AJs preside at hearings in millions of adjudications each year.

If, as seems likely, that iterative process yielded a series of holdings that many thousand federal employees with responsibilities that include presiding at hearings are inferior officers, federal courts would then have to decide what to do about the cases that have been the subject of hearings presided over by those unconstitutionally appointed officers. Courts would also have to decide whether the statutory restrictions on removal of the members of this large new class of inferior officers are constitutional, an issue not before the Court in this case. The point, however, is that the stakes are sufficiently high to justify a judicial approach that preserves as much as possible the congressional design to check agency power through the use of ALJ. ...

The claims that SEC ALJs are biased in favor of the agency echo the widespread claims of bias that provided the impetus for Congress’s decision to enact the APA [Administrative Procedure Act, which led to the creation of the ALJ position]. That statute reduced significantly the potential for ALJ bias in the process of presiding over agency adjudications. Ironically, the claims of bias spawned by the SEC’s decision to bring some enforcement actions before ALJs, rather than federal district judges, have been coupled with the argument that SEC ALJs should be appointed by the agencies where they preside and should be removable at will by the agencies where they preside. 

It is hard to imagine a worse fit between an alleged problem in decision-making and a proposed remedy for that problem. If this Court makes a decision that cascades into a legal regime in which agencies have greater discretion in the process of appointing ALJs and have the discretion to remove ALJs without establishing any cause for removal, it will have eliminated many of the safeguards against pro-agency bias that Congress incorporated in the APA and that this Court praised as important mechanisms to protect the due process rights of the private parties who participate in agency hearings. That, of course, would increase the risk that SEC ALJs will make decisions that reflect pro-agency bias in their roles as presiding officers. ...