The transcript is now available for the Supreme Court argument in Lucia v. SEC, concerning whether Administrative Law Judges, at least at the Securities and Exchange Commission are constitutional.
Update: If I were going to guess based upon reading the transcript, I’d predict a 5-4 decision holding the SEC ALJs constitutional with the following split but that guess is only worth what you're paying for it.
Update: If I were going to guess based upon reading the transcript, I’d predict a 5-4 decision holding the SEC ALJs constitutional with the following split but that guess is only worth what you're paying for it.
Unconstitutional
Roberts (clearly)
Kagan (hard to read because she treated the oral argument as if it were a law school class)
Thomas (of course, he never speaks during oral arguments so I'm making an assumption here)
Gorsuch (had taken this position in a related case while on the Court of Appeals)
Constitutional
Alito (surprise -- but I may misread him since his problem may only be that he didn't like the tests proposed by the attorneys arguing the case)
Sotomayor (concerned about practicalities)
Ginsberg (concerned about practicalities)
Kennedy (concerned about practicalities)
Breyer (concerned about practicalities)
I'd guess that if there are swing votes, they will be Kagan and Alito, which is weird to contemplate.
One thing that should be a problem for any Justice is that no one had a bright line test. The attorneys arguing the cases said they had bright line tests but none of the Justices seemed impressed with those tests.
It was good that four justices were definitely concerned about practicalities although sobering that four others didn't seem concerned.
Anyway, read the transcript and tell us what you think.
11 comments:
Melitsky kind of flailed about from the ALJ perspective. Not a lot of clarity or bright counter-examples in his presentation. But as an ALJ, I'm heartened that even some of the conservative Justices had tough questions for the Petitioner (Perry) and the Trump SEC (Wall). And that Perry and Wall didn't have congruent arguments. All that suggests that the status quo (the DC Circuit affirmance) should be upheld.
And how hilarious that nobody would let Gorsuch speak.
from the definition given during the proceeding, I don't think SSA ALJs fit in the nonadversarial category as one side tried to argue. they defined adversarial proceedings as one where the gov't hauls a person in to take some type of negative action and where there are high stakes. they argued that SSA ALJs only deal with voluntary applications for benefits, so the proceedings are not inherently adversarial.
this is a long way from being accurate. yes, ALJs deal with applications by claimants who seek a government benefit. however ALJs and AAJs also deal with representative sanctions who are being brought up for agency actions for misconduct. ALJs and AAJs can sanction reps by taking away their right to practice or represent any claimant before the SSA. Taking away or restricting the ability to earn a living seems pretty high stakes. another example is when dealing with overpayments because ALJs and AAJs can decide whether a claimant is ultimately on the hook for owing literally thousands of dollars in overpayments. or how about when the claimant is brought up for a CDR, this is not claimant initiated. Again ALJs and AAJs can ultimately make a binding finding that a claimant is no longer entitled to any benefits under any portion of the Social Security Act. this doesn't even begin to address the redetermination process just ask anyone dealing with Conn cases.
so yes, the stakes can be very high on the types of cases SSA adjudicators can review. usually adversarial means following the rules of evidence, but from the definition stated at the hearing today it is clear that ALJs and AAJs do hold high stake proceedings. someone needs to point this out to the Court because the explanation provided today is woefully lacking in any type of complete accuracy.
3:44, ALJ sanction powers are so diluted as to be non existent. We can't levy sanctions, we can only recommend to OGC, which they enforce even more rarely than ALJ subpoena enforcement requests to OGC.
I think they'll do everything they can to make their holding very narrow as it seemed no one wanted to talk about or touch SSA ALJs.
The thing about the non-adversarial point I do not understand is how a non-adversarial proceeding ALJ is vested with less power than an adversarial proceeding ALJ. If anything, I would think a non-adversarial ALJ has greater power.
4:12, i'm speaking to administrative actions, which include, but are not limited to, rep sanctions such as suspension or disqualification before the Agency, and yes they do happen. OGC can bring up charges based on, in part, an ALJ or other party's recommendation and allegations, but it's the assigned adjudicator who issues the agency's decision on whether to sanction. there are POMS instructions on all this such as in POMS 03970.050 and 02604.405.
3:44/4:12 - Your statements are incorrect. First, ALJs and AAJs do not issue sanctions. If OGC decides sanctions are necessary, it can go before a hearing officer, who is selected from the ALJ ranks. However, OGC must only uses certain ALJs or management ALJs, because I've never heard of anyone being offered this opportunity. Second, with respect to overpayments and CDRs, it is an agency employee that makes the determination that payments were made incorrectly or that the individual is no longer eligible for disability. The appeal to the ALJ level is filed to REGAIN those benefits. That appeal is completely voluntary on the part of the claimant and used as a means to try to gain some benefit from the government.
That is part of the adversarial/non-adversarial argument made before the SC. SEC and certain other ALJs may bring a private citizen against his will before a government body to be stripped of certain vested rights. On the other hand, SSA ALJs decide cases where a citizen voluntarily goes before the government body to seek benefits from the government. See p.12 of the SC transcript. The SEC lawyer therefore argues that SEC hearings are adversarial because certain things can be taken away by the ALJ, while SSA hearings are non-adversarial because at that level, you are only asking for certain things to be granted.
I think 344/412 is correct because judges issue decisions not OGC. SSA aljs and SEC aljs are both part of an agency's appeals process. OGC is there to bring forth and defend agency actions not issue decisions. The sanctions and overpayment examples offer an interesting analogue as both can involve binding ALJ decisions. That said, this is a fine discussion all around.
It will be interesting to see how the court resolves this attack on the administrative state. Is there an audio link available for the oral arguments?
If the court rules in favor of Lucia, they are going to try to land the decision on the head of a pin, making it very narrow.
The problem is that the test proposed by Lucia as fleshed out on questioning would in fact cover SSA ALJs when they do over-payment decisions.
11:14, audio should be posted by Friday, says SCOTUSBlog.
I don't view SSA ALJ affirmation of SSA overpayment decisions on the same level as SEC ALJ clawbacks of ill gotten profits.
Alito very rarely departs from his conservative brethren.
https://www.theatlantic.com/politics/archive/2016/01/none-to-the-right-of-samuel-alito/431946/
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