Lucia v. SEC, concerning whether Administrative Law Judges (ALJs), as currently appointed, are unconstitutional, at least at the SEC, will be argued before the Supreme Court on Monday. Ronald Mann gives an argument preview for SCOTUSblog. Here are some excerpts:
... On the merits, the argument that the appointments are invalid is a powerful one, largely because the activities of ALJs are so similar to the activities considered by the Supreme Court in its 1991 decision in Freytag v. Commissioner, which held that “special tax judges” of the Tax Court qualified as officers for purposes of the appointments clause. Like the ALJs involved here, those officers supervised trial-like proceedings, formed an evidentiary record and reached preliminary decisions in the matters before them. If the justices decide to take seriously the opinion and analysis in Freytag, then the challenge here will have a great deal of credibility.
The strongest argument in support of the existing arrangement is that the judges here are not officers because nothing that they do is actually effective as a decision of the SEC until the SEC approves it – the ALJ decisions are only tentative and have no effect until the SEC acts. [Note that unlike SEC ALJs, Social Security ALJs do make final decisions. If the Supreme Court decides the case on this point, Social Security ALJs will be at risk.] ...
The oral argument may be crucial here. Several of the justices have stated in previous cases that they regard ALJs generally as officers subject to the appointments clause (Justice Anthony Kennedy, by his joinder in the Freytag opinion, and Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor in more recent decisions). If those four maintain that view, it will be difficult for Metlitsky [arguing that the ALJs are constitutional] to find five votes to uphold the status quo. I would watch particularly for the reaction of Justice Elena Kagan, whose scholarly background is likely to give her a strong reaction to the competing interests. ...
Of course, there's no live broadcast of the oral argument. The Supreme Court will release an audio recording of the argument but not until next Friday. However, a written transcript of the oral argument will be released sometime Monday.
1 comment:
This whole thing is a right-wing thought experiment (lifetime federal civil servants are evil) that's gone too far. The amicus briefs are interesting to read; the right wing is strident and the left wing is meek and impotent. Mark Cuban whines about SEC overreach. The New Civil Liberties Alliance calls ALJs the Deep State. The various claimant lobbies don't so much state the obvious that needs to be stated (ALJs are employees), but rather point out to CJ Roberts, the pragmatist, the chaos that will ensue amongst claimants if ALJs are struck down. SSD hearings would have to stop. If ALJs become political appointments and patronage jobs, as the right wants, then every 4-8 years you'd have a months-long gap in hearings and decisions, as the corps is replaced with every change in administration. The status quo is fine as it operates today, but as the right wing tries to end the civil service and return us to the days of patronage and graft, the status quo is doomed. And nobody on the left is pointing out that the civil service needs to be protected.
Post a Comment