Lucia v. SEC

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Supreme Court of the United States
Lucia v. SEC
Term: 2017
Important Dates
Argument: April 23, 2018
Decided: June 21, 2018
Outcome
D.C. Circuit reversed
Majority
Chief Justice John G. Roberts • Clarence Thomas • Anthony Kennedy • Samuel Alito • Elena Kagan • Neil Gorsuch
Concurring
Stephen Breyer
Dissenting
Sonia Sotomayor • Ruth Bader Ginsburg


Lucia v. SEC is a case decided on June 21, 2018, by the United States Supreme Court that held that the administrative law judges of the Securities and Exchange Commission (SEC) are Officers of the United States subject to the Appointments Clause. The case was argued on April 23, 2018, as part of the Supreme Court's October 2017 term. The case came on a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

HIGHLIGHTS
  • The case: Raymond J. Lucia and Raymond J. Lucia Companies (referred to collectively as Lucia) were party to an administrative proceeding before an SEC administrative law judge (ALJ). After an adverse ruling from the ALJ, Lucia appealed to the SEC for review. Lucia argued that the administrative proceeding had been unconstitutional because the ALJ had not been properly appointed. Lucia argued that the ALJ was an Officer of the United States within the meaning of the Appointments Clause; therefore, Lucia claimed, the ALJ's appointment had to have been directly ratified by the SEC. At the time, SEC staff appointed ALJs and they were not directly ratified by the commissioners themselves. The United States Court of Appeals for the District of Columbia Circuit concluded that ALJs did not qualify as officers under the Appointments Clause, and Lucia appealed to the Supreme Court.
  • The issue: "Whether administrative law judges of the Securities and Exchange Commission are Officers of the United States within the meaning of the Appointments Clause."[1]
  • The outcome: The Supreme Court reversed the D.C. Circuit's ruling and held 7-2 that the SEC ALJs are Officers of the United States subject to the Appointments Clause.[2]

    • Why it matters: The Supreme Court's ruling in Lucia v. SEC relied on precedent established in Freytag v. Commissioner (1991). In Freytag, the court determined that the special trial judges (STJs) of the United States Tax Court were Officers of the United States due to their continuity in office and significant authority in adjudicating cases and issuing decisions. The court thus applied Freytag to Lucia and determined that the SEC ALJs are Officers of the United States subject to the Appointments Clause. While the opinion was silent on the application of the ruling to other ALJs in the executive branch, SCOTUSblog contributor Ronald Mann observed that "it would not be at all surprising if Lucia ended up invalidating all of the existing systems for appointments of ALJs."[3]

    You can review the lower court's opinion here.[4]

    Background

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    What is an administrative law judge?

    See also: Administrative law judge

    The role of the administrative law judge was created under the Administrative Procedure Act (APA) of 1946. According to the U.S. Office of Personnel Management (OPM), the federal government established administrative law judges as impartial adjudicators in order to "ensure fairness in administrative proceedings before Federal Government agencies." Since their authority is limited to federal executive branch agencies, administrative law judges are part of the executive branch rather than the judicial branch.[5][6][7]

    Administrative law judges preside over administrative hearings involving disputes between federal agencies and affected parties. The APA requires that administrative law judges preside over formal adjudication proceedings, though they may also preside over hearings during informal adjudication. Since administrative hearings operate in a manner similar to civil bench trials, administrative law judges serve as both the judge and the jury. They have the authority to hold hearings, issue subpoenas, review findings, and administer rulings.[8][6][9]

    A number of federal agencies employ their own ALJs, including the SEC, the Social Security Administration, the U.S. Department of Labor, the U.S. Department of the Interior, the U.S. Department of Agriculture, and the U.S. Drug Enforcement Administration. According to the OPM, employing agencies have "[t]he responsibility to ensure the independence of the administrative law judge" in all proceedings. If a federal agency does not employ its own ALJ, the agency may request an ALJ from the OPM when necessary for a period of six months.[6]

    Legal question

    The case concerned the Appointments Clause of the United States Constitution. The Appointments Clause states:

    “ [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.[10] ”


    The issue in this case was whether ALJs with the SEC are Officers of the United States within the meaning of the clause. If they are, then they can only be appointed by the president, the courts, or heads of departments. If they are not, then they can be appointed in other ways. The SEC commissioners are considered heads of departments with the power to appoint inferior officers. At the time of Lucia's case, the SEC maintained a practice of allowing SEC staff to appoint new ALJs without requiring the SEC's ratification of those appointments. Unlike the SEC commissioners, SEC staff members are not considered heads of departments. Therefore, as a result of the practice, ALJs were appointed by people who did not have the power to appoint Officers of the United States. Therefore, the court's ruling that ALJs are officers within the meaning of the Appointments Clause means that the SEC Commissioners themselves must directly ratify ALJ appointments.[4]

    Under Supreme Court precedent, an Officer of the United States is someone who "exercises significant authority pursuant to the laws of the United States." "When evaluating whether an appointee is a constitutional Officer, a reviewing court will look not only to the authority exercised in a petitioner’s case but to all of that appointee’s duties."[4]

    Case background

    The Securities and Exchange Commision (SEC) is made up of five commissioners. Those commissioners must be nominated by the president and confirmed by the United States Senate. The SEC is charged with enforcing certain statutes related to the regulation of markets. U.S. law allows the commissioners to delegate some authority to administrative law judges (ALJs) to review alleged statutory violations and issue rulings. A party may appeal an ALJ's ruling to the SEC commissioners, and any single commissioner may initiate review of a case. Review is mandatory in certain cases.[4]

    Raymond J. Lucia and Raymond J. Lucia Companies were accused of violating the Investment Advisers Act. After an ALJ ruled against Lucia, Lucia petitioned the SEC for review.[11] Lucia argued that the administrative proceeding conducted by the ALJ had been unconstitutional because the presiding ALJ had not been properly appointed under the Appointments Clause. On appeal, the SEC "concluded its ALJs are employees, not Officers, and their appointment is not covered by the Clause."[4] Lucia filed suit in federal district court. The district court judge agreed with the SEC that ALJs were not officers within the meaning of the Appointments Clause.

    Lucia appealed to the United States Court of Appeals for the District of Columbia Circuit.[4] Lucia argued that ALJs exercise significant authority to interpret and apply law through their adjudication of administrative proceedings. Lucia argued that although the SEC may review an ALJ's decision, it is not required to review all decisions; therefore, Lucia argued, in the absence of review the ALJ's decision becomes the final and binding decision. Based on the scope of an ALJ's authority, Lucia claimed, ALJs working for the SEC should be considered Officers of the United States within the meaning of the Appointments Clause.[4][12]

    Panel opinion

    The United States Court of Appeals for the District of Columbia Circuit affirmed the district court. Citing its own precedent, the court wrote, "The main criteria for drawing the line between inferior Officers and employees not covered by the Clause are (1) the significance of the matters resolved by the officials, (2) the discretion they exercise in reaching their decisions, and (3) the finality of those decisions." The court focused its analysis on the amount of final authority delegated to ALJ. It concluded that an ALJ's authority was limited because an ALJ's decisions were always subject to review by the commissioners:

    “ The Commission’s ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for the public benefit...[The Commission] reviews an ALJ’s decision de novo and may affirm, reverse, modify, [or] set aside the initial decision, in whole or in part, and it may make any findings or conclusions that in its judgment are proper and on the basis of the record. It ultimately controls the record for review and decides what is in the record...The Commission can always grant review on its own initiative, and so it must consider every initial decision, including those in which it does not order review. It gives itself time to decide whether to order review and must always issue a finality order to indicate whether it has declined review.[4][13][10] ”


    The court concluded that the SEC's authority to review, uphold, or decline to review an ALJ's ruling meant that the SEC alone has final authority over a ruling. Therefore, the court wrote, ALJs do not exercise the kind of significant authority that would make them Officers of the United States. The court ruled that ALJs are not officers within the meaning of the Appointments Clause.[4]

    Lucia then appealed to the United States Supreme Court.

    Case overview

    Petitioner's challenge

    The petitioner, Lucia, challenged the holding of the United States Court of Appeals for the District of Columbia Circuit. Lucia argued that the SEC's ALJs are Officers of the United States within the meaning of the Appointments Clause and that, therefore, the administrative proceeding against Lucia was unconstitutional.[1]

    Certiorari granted

    On July 21, 2017, the petitioner initiated proceedings in the Supreme Court of the United States in filing a petition for a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

    On November 29, 2017, U.S. Solicitor General Noel Francisco filed a brief reversing the Trump administration's position in the case. Prior to the brief, the administration had supported the ruling from the United States Court of Appeals for the District of Columbia Circuit that upheld the use of administrative law judges (ALJs). Francisco stated in the brief that the administration would no longer defend the ruling from the United States Court of Appeals for the District of Columbia Circuit and, instead, supported the position that the SEC's ALJs were inferior officers subject to the Appointments Clause rather than employees. He urged the Supreme Court to hear Lucia's appeal in order to provide clarity on the issue for the SEC and other federal agencies. On November 30, 2017, the SEC announced that it had ratified the appointments of its ALJs in order to mitigate concerns over whether the agency's administrative proceedings violated the Appointments Clause.[14][15]

    The U.S. Supreme Court granted the petitioner's request for certiorari on January 12, 2018. Argument in the case was set for April 23, 2018.[1]

    Question presented

    Question presented:

    "Whether administrative law judges of the Securities and Exchange Commission are Officers of the United States within the meaning of the Appointments Clause."[1]

    Audio

    • Audio of oral argument:[16]



    Transcript

    • Transcript of oral argument:[17]


    Decision

    The Supreme Court held 7-2 to reverse and remand the decision of the United States Court of Appeals for the District of Columbia Circuit. The majority opinion was written by Justice Elena Kagan and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. Thomas and Gorsuch also filed a concurring opinion. Justice Stephen Breyer, joined in part by Justices Ruth Bader Ginsburg and Sonia Sotomayor, filed an opinion concurring in the judgment in part and dissenting in part. Sotomayor was joined by Ginsburg in a separate dissenting opinion.[2]

    Opinions

    Opinion of the court

    The justices relied on precedent established in United States v. Germaine (1879), Buckley v. Valeo (1976), and Freytag v. Commissioner (1991) to craft their decision. Together, the Germaine and Buckley rulings determined that an individual must occupy a continuing position and exercise significant authority in order to be considered an Officer of the United States. These principles were later applied in Freytag—a case described as a carbon copy of Lucia by Justice Elena Kagan in the court’s opinion. In Freytag, the court determined that the special trial judges (STJs) of the United States Tax Court were Officers of the United States due to their continuity in office and significant authority in adjudicating cases and issuing decisions. In the case of Lucia, the justices noted that ALJs exercise significant authority because their decisions may become final decisions if the SEC declines to review the ruling. The court thus applied Freytag to Lucia and determined that the SEC ALJs are “Officers of the United States” subject to the Appointments Clause.[2]

    “[T]he ‘appropriate' remedy for an adjudication tainted with an appointments violation is a new 'hearing before a properly appointed' official,” stated Kagan in the opinion. “And today we hold nothing more. … To cure the constitutional error, another ALJ (or the Commission itself) must hold the new hearing.”[2]

    Dissenting opinions

    Justice Stephen Breyer, joined in part by Justices Ruth Bader Ginsburg and Sonia Sotomayor, filed an opinion concurring in the judgment in part and dissenting in part. Breyer noted that the appointment of ALJs by the SEC violated provisions of the Administrative Procedure Act (APA)—thus reaching a similar conclusion on statutory rather than constitutional grounds. Breyer also raised concerns about the constitutionality of ALJ removal protections—a question that the court declined to consider at this time—and the majority’s conclusion that a new ALJ, rather than the ALJ who originally heard the case, must preside over the new hearing. Sotomayor was joined by Ginsburg in a dissenting opinion arguing that the SEC’s ALJs did not exercise significant authority since “they lack final decision making authority” and echoing Breyer’s concerns about the need to remedy the case through a new hearing before a different ALJ.[2]

    Text of the opinion

    Impact

    The Lucia ruling could impact administrative proceedings conducted by ALJs across federal agencies, including more than 100 cases before the SEC and a dozen cases on appeal at the time of the decision. Following the decision, SCOTUSblog contributor Ronald Mann observed that "it would not be at all surprising if Lucia ended up invalidating all of the existing systems for appointments of ALJs." The U.S. Office of Personnel Management (OPM) reported a total of 1,931 administrative law judges (ALJs) working for federal agencies as of March 2017.[18][3][19]

    Responses

    Philip Hamburger, Columbia law professor and president of the New Civil Liberties Alliance (NCLA), issued the following response in an NCLA press release:[20]

    “ Our goal was to ensure that there would be a large majority against the SEC, and it is gratifying that that has happened. Lucia is a powerful affirmation that the administrative state is subject to law and that even as venerable an agency as the SEC will be held accountable.[10] ”


    Jeffrey McCoy and Oliver Dunford, attorneys with the Pacific Legal Foundation, made the following observations in an analysis of the decision for SCOTUSblog:[21]

    “ Today’s opinion is a positive step. From now on, ALJs in the federal government who exercise 'significant authority' must be appointed under the appointments clause. This should result in more scrutiny of those appointed — and those who make the appointments. An accountable government is necessary to protect individual liberty.[10] ”


    Mark Joseph Stern, a journalist for Slate, offered the following response to the decision:[22]

    “ On its own terms, Lucia is a tremor but not an earthquake. Richard Levy, a professor at the University of Kansas School of Law, told me that it seems to leave room for the SEC to ratify the appointment of ALJs, a step the commission has already taken. It also appears to be kosher for the commissioners to farm out the work of selecting ALJs to others, then provide formal approval. Still, the decision may infringe on the independence of ALJs, who are meant to be apolitical civil service employees.[10] ”


    David Zornow, an attorney with Skadden, Arps, Slate, Meagher & Flom, provided the following analysis of the opinion to The New York Times:[23]

    “ David M. Zornow, who brought one of the first legal challenges to the S.E.C.’s appointment practices, said his reading of the decision permits any litigant with a pending administrative case who has challenged the constitutionality of an administrative law judge to demand a new hearing.


    Mr. Zornow, who is a partner with Skadden, Arps, Slate, Meagher & Flom, said it is less certain how the ruling will affect settled cases, even ones in which a defendant had challenged the constitutionality of an administrative judge to preside over the matter.[10]

    		”


    Formal federal judge Richard Howell offered his view of the decision to The New York Times:[23]

    “ Richard J. Holwell, a former federal judge, said the ruling should not affect hundreds of completed cases. 'The decision is pretty carefully crafted' to limit its impact, he said, adding that the Supreme Court left open the question of whether it would apply to administrative judges at other agencies.[10] ”


    The Wall Street Journal editorial board put forth the following analysis:[24]

    “ The ruling is a victory for political accountability in an administrative state that is ever more sprawling and opaque. Administrative judges can be especially frustrating because their rulings overwhelmingly favor the agencies for which they work. Agencies with the power for significant enforcement action like the SEC should be using them in fewer cases, and the Commissioners should review their decisions with more care than they do.[10] ”


    Potential impact analysis prior to the ruling

    Mark Perry, Supreme Court counsel for Raymond Lucia and an attorney with Gibson Dunn, made the following observations on the case's potential impact in a Reuters article in September 2017:

    “ Would a ruling that ALJs have to be accountable to the president wreak havoc across executive branch administrative proceedings? Not necessarily, according to Perry. There are about 2,000 administrative law judges in the federal government, but the vast majority work for the Social Security Administration and would not, Perry said, be affected by a Supreme Court ruling on the Appointments Clause. Only about 142 ALJs, by Gibson Dunn’s calculation, exercise significant power in enforcement proceedings and could be subject, in Lucia’s theory, to the Appointments Clause.[25][10] ”


    Arthur G. Sapper, senior counsel for Ogletree, Deakins, Nash, Smoak & Stewart P.C., commented on the case's potential impact in an article for Business Insurance in January 2018:

    “ Observers say the Supreme Court’s ultimate ruling in the case could affect the constitutionality of rulings by administrative law judges from other agencies as well, including the Federal Energy Regulatory Commission, the Environmental Protection Agency, the Federal Deposit Insurance Corp. and the Consumer Financial Protection Bureau.


    Not impacted would be the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission and the National Labor Relations Board, because of the manner in which administrative law judges are appointed to those agencies, according to Arthur G. Sapper, senior counsel with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Washington.[26][10]

    		”


    Contributors from Davis, Polk & Wardwell LLP provided the following analysis to Columbia Law School's Blue Sky Blog in December 2017:

    “ Even if the SEC’s ratification process passes muster, the SEC Order applies to matters pending before the agency, not those that have been fully adjudicated or are already before a court. Furthermore, the SEC’s ratification process only addresses the hiring, and not the firing, of ALJs. The Solicitor General’s filing sets the stage for the lingering question of whether the restrictions on ALJs’ removal are permissible, which may or may not be addressed by the Supreme Court if it takes the case, or left to be litigated in the lower courts in the first instance. The resolution of these issues may very well implicate ALJs and administrative proceedings across many federal agencies, and not just the SEC.[27][10] ”


    Contributors from Ballard Spahr LLP made the following observations to The National Law Review in December 2017:

    “ Needless to say, it is extremely unusual for the DOJ to take up arms against another government agency like this. How it impacts the outcome of the Lucia case is yet to be seen. As we’ve explained in prior posts, the CFPB uses SEC ALJs to hear its administrative cases. So, if the Supreme Court hears the Lucia case and determines that ALJs are inferior officers, it will call into question every SEC and CFPB case that an ALJ decided.[28][10] ”


    Kent Barnett, a professor at the University of Georgia School of Law, reached the following conclusions regarding the possible impact of Lucia in an April 2018 blog post for the Yale Journal on Regulation:[29]

    “ What does that mean for Lucia? Likely a remand to the SEC for a new hearing (perhaps even a truncated one before the same, now properly appointed ALJ). The Court is unlikely to dismiss the entire action because it doesn’t do so in other, perhaps more consequential litigation. For instance, a criminal defendant who was denied her right of self-representation does not get the indictment tossed; she gets a new trial in which she can represent herself. In Buckley v. Valeo, the Court held that every one of the Federal Election Committee’s six commissioners were appointed in a blatantly unconstitutional fashion. The FEC was the most blatantly unconstitutionally structured agency that Congress has ever created. But what was the Court’s remedy? To validate all of the FEC’s past actions and to give them 30 days to continue regulating. Lucia should not expect anything more.[29][10] ”


    Susan Brune, in a January 2018 analysis for Law360, argued that Lucia could have implications for ALJ independence under the APA:[30]

    “ Recent challenges to the system whereby administrative law judges are selected have coalesced into a grant of certiorari in Lucia v. U.S. Securities and Exchange Commission, a case that would enable the U.S. Supreme Court to remake how ALJs are hired — and how they may be fired. If so, control over who serves as an ALJ will belong less to the Office of Personnel Management, or OPM, and employees of the various agencies that make up our nation’s administrative system and more to the presidentially appointed members of the various commissions and heads of the agencies.[30][10] ”

    Aftermath

    Lucia settles with SEC after eight years of litigation (2020)

    Raymond Luciareached a settlement with the U.S. Securities and Exchange Commission (SEC) on June 17, 2020, after eight years of litigation. The settlement requires Lucia to pay a $25,000 fine and allows him to reapply for reinstatement as an investment advisor.[31]

    Lawsuit challenging constitutionality of SEC ALJ cause removal protections (2018-2019)

    The New Civil Liberties Alliance, a pro bono law firm with a focus on the administrative state, filed a lawsuit on November 28, 2018, in the United States District Court for the Southern District of California aimed at preventing Raymond Lucia, the plaintiff in Lucia v. SEC, from being required to submit to new adjudication proceedings before an administrative law judge (ALJ) at the Securities and Exchange Commission (SEC). NCLA also requested a stay in Lucia's proceeding by the SEC ALJ assigned to his rehearing.[32]

    NCLA claims that SEC ALJs continue to function in an unconstitutional capacity despite the United States Supreme Court's ruling in Lucia v. SEC, which held that ALJs are officers of the United States subject to the Appointments Clause. ALJs' cause removal protections, according to NCLA, violate the Constitution's requirement that all officers of the United States must be removable by the president.[32]

    The United States District Court for the Southern District of California held a hearing in the case on March 22, 2019. Judge Dana Sabraw dismissed the case on August 21, 2019, claiming that the court lacked jurisdiction to move forward.[33][34][35][36]

    The SEC denied Lucia's request for a stay in proceedings on July 15, 2019.[37]

    NCLA on December 4, 2019, filed a motion with the United States Court of Appeals for the 9th Circuit asking the court to enjoin Lucia's administrative proceedings before the SEC until the court can determine whether it has jurisdiction to rule on NLCA's claim that the ALJs of the SEC have unconstitutional removal protections.[36]

    SEC halts ALJ proceedings (2018)

    On June 21, 2018, the Securities and Exchange Commission (SEC) issued an order to halt, or stay, adjudication proceedings before its in-house administrative law judges (ALJs). The order was effective for 30 days, subject to further direction from the agency. The stay applied to the more than 100 pending cases and 12 cases on appeal before the SEC at the time of the order. On July 20, 2018, the SEC extended the stay for another 30 days, effective through August 22, 2018.[38][39][40]

    The SEC issued the order following the June 21 decision from the United States Supreme Court in Lucia v. SEC. The Lucia decision held that the SEC ALJs are Officers of the United States subject to the Appointments Clause. As such, they had been improperly appointed at the time of Lucia’s case. Though the SEC retroactively ratified its ALJ appointments pursuant to the Appointments Clause in November 2017, the full impact of the Lucia opinion for ALJs at the SEC and other federal agencies remained unclear at the time.[39]

    "In light of the Supreme Court's decision in Lucia v. SEC, we find it prudent to stay any pending administrative proceeding initiated by an order instituting proceedings that commenced the proceeding and set it for hearing before an administrative law judge, including any such proceeding currently pending before the commission," stated the order.[39]

    The SEC issued an order on August 22, 2018, announcing that the agency would resume adjudication proceedings before its in-house ALJs and would allow for all pending and appealed cases to have a new hearing before a different ALJ. The opportunity for a new hearing allows the SEC to restart the cases in an effort to ward off potential litigation from pending and appealed cases that were heard by a then-improperly appointed ALJ.[41][42]

    See also

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 Supreme Court of the United States, "Lucia v. SEC" Question Presented, January 12, 2018
    2. ↑ 2.0 2.1 2.2 2.3 2.4 United States Supreme Court, "Lucia v. SEC Opinion," June 21, 2018
    3. ↑ 3.0 3.1 SCOTUSblog, "Opinion analysis: Justices invalidate civil-service appointments of administrative law judges," June 21, 2018
    4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 United States Court of Appeals for the District of Columbia, "Lucia v. SEC" Opinion, August 9, 2016
    5. ↑ U.S. Office of Personnel Management, "Qualification Standard For Administrative Law Judge Positions," accessed July 20, 2017
    6. ↑ 6.0 6.1 6.2 JUSTIA, "Administrative Law Judges," accessed July 21, 2017
    7. ↑ Congressional Research Service, "Administrative Law Judges: An Overview," April 13, 2010
    8. ↑ JUSTIA, "Administrative Hearings," accessed July 21, 2017
    9. ↑ William & Mary Law School Scholarship Repository, "Reflections upon the Federal Administrative Judiciary," 1992
    10. ↑ 10.00 10.01 10.02 10.03 10.04 10.05 10.06 10.07 10.08 10.09 10.10 10.11 10.12 10.13 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    11. ↑ Lucia's first appeal was sent back to the ALJ for revision, and the ALJ published a revised opinion.
    12. ↑ Lucia made additional arguments on appeal. However, the only argument at issue in the Supreme Court appeal is whether the SEC's ALJs qualify as Officers of the United States.
    13. ↑ Internal citations and quotations have been omitted.
    14. ↑ U.S. Securities and Exchange Commission, "SEC Ratifies Appointment of Administrative Law Judges," November 30, 2017
    15. ↑ Bloomberg, "Trump Administration Switches Sides on Challenge to SEC Judges," November 29, 2017
    16. ↑ Supreme Court of the United States, Lozman v. City of Riviera Beach, argued February 27, 2018
    17. ↑ Supreme Court of the United States, Lucia v. SEC, argued April 23, 2018
    18. ↑ U.S. Office of Personnel Management, "Administrative Law Judges," accessed January 25, 2018
    19. ↑ Bloomberg, "SEC's In-House Judges Draw Scrutiny From U.S. Supreme Court," January 12, 2018
    20. ↑ PRNewswire, "New Civil Liberties Alliance (NCLA) Applauds Supreme Court Ruling in Lucia v. SEC," June 21, 2018
    21. ↑ SCOTUSblog, "Symposium: The future of the appointments clause," June 21, 2018
    22. ↑ Slate, "Elena Kagan Is Up to Something," June 21, 2018
    23. ↑ 23.0 23.1 The New York Times, "S.E.C. Judges Were Appointed Unlawfully, Justices Rule," accessed June 25, 2018
    24. ↑ The Wall Street Journal, "Administrative Law Smackdown," June 21, 2018
    25. ↑ Reuters, "New 5th Circuit decision on ALJ constitutionality adds urgency to SCOTUS bid," September 12, 2017
    26. ↑ Business Insurance, "Supreme Court to hear SEC administrative law judge case," January 23, 2018
    27. ↑ The CLS Blue Sky Blog, "Davis Polk Discusses Solicitor General’s Change of Heart on SEC Judges," December 11, 2017
    28. ↑ The National Law Review, "DOJ sides with Lucia against the SEC in dispute over whether ALJs are inferior officers," December 12, 2017
    29. ↑ 29.0 29.1 Notice & Comment, "The Consequences of Missing Appointments, by Kent Barnett," April 2, 2018
    30. ↑ 30.0 30.1 Law360, "Lucia Will Not Address Essential Problem With SEC Court," January 29, 2018
    31. ↑ GlobeNewswire, "Ray Lucia’s Sweetheart Settlement Proves that for the SEC the Sour Process Is the Punishment," June 17, 2020
    32. ↑ 32.0 32.1 PR Newswire, "NCLA Files Suit Over Unconstitutional SEC Appointees," November 29, 2018
    33. ↑ Law360, "Lucia's Latest ALJ Fight Thrown Out Of Federal Court," August 22, 2019
    34. ↑ The San Diego Union-Tribune, "Ray Lucia's battle against the powerful Securities and Exchange Commission begins again," February 6, 2019
    35. ↑ United States District Court for the Southern District of California, "PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO DISMISS COMPLAINT," July 10, 2019
    36. ↑ 36.0 36.1 New Civil Liberties Alliance, "NCLA Asks Ninth Circuit Court of Appeals to Halt Unconstitutional SEC Hearing," December 4, 2019
    37. ↑ United States Securities and Exchange Commission, "In the Matter of Raymond J. Lucia Companies Inc. and Raymond J. Lucia Sr., Order," July 15, 2019
    38. ↑ Bloomberg, "‘Buckets of Money’ Case Tests Power of SEC Judges in Trump Era," April 23, 2018
    39. ↑ 39.0 39.1 39.2 Pensions and Investments, "SEC puts in-house cases on hold after Supreme Court ruling," June 25, 2018
    40. ↑ Securities and Exchange Commission, "In re: Pending Administrative Proceedings, ORDER," July 20, 2018
    41. ↑ The Wall Street Journal, "SEC to Rehear Dozens of Cases That Went Before In-House Judges," August 23, 2018
    42. ↑ The New York Times, "S.E.C. Will Rehear Dozens of Cases After Supreme Court Ruling," August 23, 2018
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    Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
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