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mahatmakanejeeves

(57,788 posts) Thu Jun 21, 2018, 10:12 AM Jun 2018

Supreme Court overturns process that had been used to appoint SEC administrative law judges

Source: ABA Journal

Supreme Court overturns process that had been used to appoint SEC administrative law judges

BY DEBRA CASSENS WEISS

POSTED JUNE 21, 2018, 9:39 AM CDT

Developing: Administrative law judges are officers of the United States within the meaning of the Constitution’s appointments clause, which requires their appointment by the president, courts or the heads of federal agencies, the U.S. Supreme Court has ruled.

The Securities and Exchange Commission had contended the judges were mere employees, and they could be appointed by staff members. That process was used in the case of Raymond Lucia, who filed the challenge after being barred from the investment industry. ... Lucia is entitled to a new hearing before a different administrative law judge, Justice Elena Kagan wrote in the majority opinion.

The SEC has since ratified the appointments of its current administrative law judges to ensure they are valid, according to prior coverage of the case.

Kagan’s opinion was joined in full by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito Jr. and Neil Gorsuch. ... Justice Stephen G. Breyer wrote an opinion partly concurring in the judgment, joined by Justice Ruth Bader Ginsburg and Sonia Sotomayor. ... The case is Lucia v. Securities and Exchange Commission.

Read more: http://www.abajournal.com/news/article/supreme_court_overturns_process_that_had_been_used_to_appoint_sec_administr

There's a bunch of opinions being handed down right now.

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I have just done much editing. Here's the old OP, now replaced with the new article:

#SCOTUS rules that administrative law judges at SEC are "officers" of the US for purposes of Constitution's appointments clause; ruling means that their appointments have been unconstitutional.

Link to tweet

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https://twitter.com/SCOTUSblog

http://www.scotusblog.com/

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This Is big.

Link to tweet

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In Lucia #SCOTUS says SEC administrative law judges are officers of the United States subject to the Appointments Clause

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11 replies

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Highlight:

Supreme Court overturns process that had been used to appoint SEC administrative law judges (Original Post) mahatmakanejeeves Jun 2018 OP

Not sure of impact(s)? What about other areas where admin. judges are ... SWBTATTReg Jun 2018 #1

Does this hinder the SEC? Is that the goal? lagomorph777 Jun 2018 #2

Uh oh. Wild guess but this might make Mueller's appt more likely unconstitutional nt pnwmom Jun 2018 #3

In 1988 the SC ruled that the appointment of an independent counsel was Constitutional. Add that to still_one Jun 2018 #6

That law expired. Mueller isn't an Independent Counsel, he's a Special Counsel. n/t pnwmom Jun 2018 #7

It was trump's justice department that named Mueller to take over the investigation of the Russian still_one Jun 2018 #8

I don't think it is, but there are people arguing that it is. pnwmom Jun 2018 #9

Geebus: six tweets that say the same thing: what's the context/implications of this??????? hlthe2b Jun 2018 #4

US Supreme Court Says SEC In-House Judges Are More Than 'Mere Employees' mahatmakanejeeves Jun 2018 #5

Supreme Court sides with discredited investment adviser, says SEC judge was improperly appointed mahatmakanejeeves Jun 2018 #10

Administrative Law Judges now will be chosen by agency heads who could pick lawyers who do not.... mahatmakanejeeves Jul 2018 #11

SWBTATTReg

(22,235 posts)

1. Not sure of impact(s)? What about other areas where admin. judges are ...

Reply to mahatmakanejeeves (Original post)

Thu Jun 21, 2018, 10:17 AM

Jun 2018

there, such as in disability claims filed against social security etc.?

lagomorph777

(30,613 posts)

2. Does this hinder the SEC? Is that the goal?

Reply to mahatmakanejeeves (Original post)

Thu Jun 21, 2018, 10:19 AM

Jun 2018

pnwmom

(109,028 posts)

3. Uh oh. Wild guess but this might make Mueller's appt more likely unconstitutional nt

Reply to mahatmakanejeeves (Original post)

Thu Jun 21, 2018, 10:22 AM

Jun 2018

still_one

(92,553 posts)

6. In 1988 the SC ruled that the appointment of an independent counsel was Constitutional. Add that to

Reply to pnwmom (Reply #3)

Thu Jun 21, 2018, 10:56 AM

Jun 2018

the fact that Trump appointed Deputy Attorney General Rod Rosenstein who then appointed Mueller makes the case even stronger for its Constitutionality.

If they were now to overturn the 1988 decision, it would imply that the President is above the law

pnwmom

(109,028 posts)

7. That law expired. Mueller isn't an Independent Counsel, he's a Special Counsel. n/t

Reply to still_one (Reply #6)

Thu Jun 21, 2018, 11:05 AM

Jun 2018

still_one

(92,553 posts)

8. It was trump's justice department that named Mueller to take over the investigation of the Russian

Reply to pnwmom (Reply #7)

Thu Jun 21, 2018, 01:39 PM

Jun 2018

meddling in the 2016 election and possible collusion between Russian agents and associates of President Trump.

How is that unConstitutional?

pnwmom

(109,028 posts)

9. I don't think it is, but there are people arguing that it is.

Reply to still_one (Reply #8)

Thu Jun 21, 2018, 02:41 PM

Jun 2018

And I'm concerned that the SCOTUS decision today might tie in with their arguments.

http://prospect.org/article/why-mueller-investigation-constitutional

Calabresi’s second point, however, is just wrong. He argues that Mueller’s investigation is unconstitutional because he was “never nominated by the president and confirmed by the Senate.” He reaches this conclusion by claiming that Mueller is “acting like a U.S. attorney” rather than an assistant and is therefore “a principal officer” who must be nominated by the president and confirmed by the Senate. But “acting like” a principal officer has no constitutional meaning and, in any case, Calabresi’s only support for this position is that Mueller “is more powerful and famous than are any of the 96 U.S. attorneys.” The factual claim regarding power is dubious, especially in light of Mueller’s referral of the Cohen investigation to the Southern District of New York. Moreover, there is no requirement that prosecutors who conduct national investigations be less “powerful” than individual U.S. attorneys. Fame, needless to say, is constitutionally irrelevant.

hlthe2b

(102,581 posts)

4. Geebus: six tweets that say the same thing: what's the context/implications of this???????

Reply to mahatmakanejeeves (Original post)

Thu Jun 21, 2018, 10:25 AM

Jun 2018

mahatmakanejeeves

(57,788 posts)

5. US Supreme Court Says SEC In-House Judges Are More Than 'Mere Employees'

Reply to mahatmakanejeeves (Original post)

Thu Jun 21, 2018, 10:42 AM

Jun 2018

US Supreme Court Says SEC In-House Judges Are More Than 'Mere Employees'

But the court does not address DOJ's request about the power of the president to fire officers of the United States. "No court has addressed that question, and we ordinarily await 'thorough lower court opinions to guide our analysis of the merits,'" Justice Kagan wrote.

By Tony Mauro | June 21, 2018 at 10:35 AM

The U.S. Supreme Court ruled Thursday that administrative law judges who handle financial disputes at the Securities and Exchange Commission are “officers” of the United States who should be appointed by the president, courts or department heads and not by agency staff. ... The split decision in Lucia v. Securities and Exchange Commission could affect hundreds of administrative judges throughout the federal bureaucracy and offer a fresh take on the status of the administrative and regulatory state.

Justice Elena Kagan wrote for herself and five other justices, determining that under the 1991 Freytag ruling the judges should be deemed “officers.” Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor concurred in part, and Sotomayor, joined by Ginsburg, wrote a dissent.

The case also briefly resonated in the ongoing headlines about President Donald Trump’s threats to fire officials involved in the Russia probe. In the briefing of the Lucia case, U.S. Solicitor General Noel Francisco urged the court to consider strengthening presidential power to remove as well as appoint key officers. The Supreme Court on Thursday declined that invitation.
....

Before the court’s ruling, federal agencies—including the SEC and the U.S. Labor Department—moved to “ratify” their administrative law judges. The administrative maneuvering was meant to sure up the decisions that these judges have made.

mahatmakanejeeves

(57,788 posts)

10. Supreme Court sides with discredited investment adviser, says SEC judge was improperly appointed

Reply to mahatmakanejeeves (Original post)

Fri Jun 22, 2018, 10:56 AM

Jun 2018

Supreme Court sides with discredited investment adviser, says agency judges are constitutional officers via @amarimow

Link to tweet

Courts & Law

Supreme Court sides with discredited investment adviser, says SEC judge was improperly appointed

By Ann E. Marimow June 21 at 12:26 PM [link:ann.marimow@washpost.com|Email the author]

The Supreme Court sided Thursday with a discredited investment adviser, finding that the Securities and Exchange Commission judge who penalized him was improperly appointed.

Raymond J. Lucia was fined $300,000 and barred for life from working as a financial adviser in 2012 after an SEC judge found his “Buckets of Money” seminars misled potential investors and violated anti-fraud statutes.

He argued that the administrative law judge lacked the authority to do his job, and the Supreme Court in a divided decision agreed.

The ruling “wiped off the books” the finding in Lucia’s case and provides a new hearing before a properly appointed agency judge, said Justice Elena Kagan in announcing the opinion she wrote for the majority.
....

The case is Lucia v. SEC.

Robert Barnes contributed to this report

Ann Marimow covers legal affairs for The Washington Post. She joined The Post in 2005 and has covered state government and politics in California, New Hampshire and Maryland. Follow @amarimow

mahatmakanejeeves

(57,788 posts)

11. Administrative Law Judges now will be chosen by agency heads who could pick lawyers who do not....

Reply to mahatmakanejeeves (Original post)

Fri Jul 13, 2018, 02:17 PM

Jul 2018

David Fahrenthold Retweeted:

Administrative Law Judges now will be chosen by agency heads who could pick lawyers who do not need the experience previously required. No more central vetting Office of Personnel Management. https://wapo.st/2JlbfO3 #federalinsider #ALJ

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