Here’s the arcane part: Instead of appointing Administrative Law Judges, the SEC delegated that power to its chief administrative law judge. In Lucia’s case, as in others, the chief ALJ selected an ALJ whom the federal Office of Personnel Management had properly found to be qualified for that role. Lucia argued unsuccessfully to the U.S. Court of Appeals for the D.C. Circuit that this selection was unconstitutional. He asserted that, under Article II of the Constitution, the ALJ had to be considered an “Officer of the United States.” As such, she could properly be appointed only by the president or by the Securities and Exchange Commission. The chief ALJ could appoint another ALJ only if the appointed ALJ were a mere “employee,” not an “officer.” The Supreme Court agreed to take the question under review.
This appointments issue has no direct implications for Mueller. As the head of a department, Acting Attorney General Rod Rosenstein, who appointed the special counsel, is constitutionally qualified to make both officer and employee appointments. Yet the Court’s handling of the appointments question will have enormous implications for administrative justice in the United States. As pointed out in an amicus brief “for neither party” by administrative law scholars, Congress created the ALJ system in the 1940s to help with the multifarious oral evidentiary hearings that are common throughout the federal government. Most ALJs, 1,655 out of 1,926, provide hearings regarding claims before the Social Security Administration. The system was intended to respond to complaints that federal hearing officers were too biased in favor of the agencies they worked for. By giving administrative adjudicators a measure of independence, Congress—and the Securities and Exchange Commission—were trying to give private parties like Lucia more a fair shake when their cases came before the government.
Far from being hurt by the system, Lucia, if anything, was helped by it. If Lucia wins his case on the Appointments Clause issue, it could wreak havoc with the varied universe of federal programs of administrative adjudication, replacing merit-system appointments with a system more easily politicized. I am among a group of constitutional and administrative law scholars who have filed another amicus brief opposed on historical grounds to this outcome.
The deeper threat to the rule of law, however, comes not from the issue of appointments, but from another issue that the Court initially seemed to dodge—namely, whether administrative law judges must be dischargeable at will or whether, as is now the case, they may be fired only for “good cause.” And make no mistake, the ultimate target here is not just administrative law judges, but all federal administrators who are “officers of the United States,” including—perhaps especially—independent prosecutors like Mueller.