After the Supreme Court found in Lucia v. SEC that the Administrative Law Judge (ALJ) appointment process was unconstitutional, the Solicitor General, who represents the federal government before the Supreme Court, told agencies that the Department of Justice would only defend ALJ decisions issued before the date that the ALJs were constitutionally appointed on the grounds that no objection was made while the case was pending before the agency.
We've just gotten the first decision of a Court of Appeals on this issue and the Court wasn't buying that argument. In the case before the Sixth Circuit, Jones Brothers v. Secretary of Labor, the objection was filed before the Federal Mine Safety and Health Review Commission but not before the ALJ. Here's some language from the opinion:
... This administrative agency, like all administrative agencies, has no authority to entertain a facial constitutional challenge to the validity of a law. An administrative agency may not invalidate the statute from which it derives its existence and that it is charged with implementing. See Mathews v. Diaz , 426 U.S. 67, 76 (1976); Weinberger v. Salfi , 422 U.S. 749, 765 (1975); Johnson v. Robison, 415 U.S. 361, 368 (1974); Pub. Util. Comm’n v. United States, 355 U.S . 534, 539–40 (1958).
Each of the three branches of the federal government, it is true, has an independent obligation to interpret the Constitution. But only the Judiciary enjoys the power to invalidate statutes inconsistent with the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803).
We thus could not fault a petitioner for failing to a raise a facial constitutional challenge in front of an administrative body that could not entertain it. See McCarthy v. Madigan , 503 U.S. 140, 147 – 48 (1992). To hold otherwise would be to stretch forfeiture beyond its breaking point. We must read the statute in light of its constitutional setting: The Mine Act establishes an agency dispute - resolution scheme of limited scope. In that context, “questions of law” include only those legal claims the Commission is fit to decide and fix. See Plaquemines Port, Harbor & Terminal Dist. v. Fed. Mar. Comm’n , 838 F.2d 536, 544 (D.C. Cir. 1988) (Bork, J.); Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 10 95, 1114–15 (D.C. Cir. 1979). ...The Court went on to the more complicated question of whether the petitioner forfeited the Lucia argument for not raising "as applied" constitutional challenge earlier but eventually concluded that the petitioner had not forfeited the argument. I see nothing in the opinion that would not apply to Social Security with at least as much force.