This seemingly mundane issue is at the heart of our fight to regain our constitutional freedoms from the deep state. I would really be interested in what @DCRedRaider02 thinks about this.
The Bureaucracy’s Judges
Courts consider if administrative law judges are constitutional.
May 30, 2017 7:19 p.m. ET
US Court of Appeals for the Federal Circuit building in Washington, DC. Photo: Alamy Stock Photo
The U.S. administrative state has grown so large that it is untethered to the original concept of the separation of powers, and a court case is trying to prove it. Last week the D.C. Circuit Court of Appeals heard a case on whether administrative law judges at the Securities and Exchange Commission are unconstitutional.
The Constitution’s Appointments Clause says “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States, whose Appointments are not herein otherwise provided for.” That’s a problem for the administrative law judges, who aren’t appointed by the President or even by the presidentially appointed SEC commissioners. They are hired by the agency’s career bureaucrats.
Yet these judges wield vast power and issue decisions in cases brought by the same agencies that sign their paychecks. Not surprisingly, the agencies make out pretty well. In 2013 the National Labor Relations Board, which also uses administrative law judges, boasted that it won 88% of the time.
The legal question is whether these judges count as “officers,” who exercise significant authority and thus require presidential appointment. So let’s see. In the case before the D.C. Circuit, Lucia v. SEC, an administrative law judge imposed some $300,000 in fines and banned Raymond Lucia from working as an investment adviser as punishment for a retirement plan that allegedly misled investors. Whether or not Mr. Lucia deserved that sanction, it strains credulity to argue that such punishment isn’t an exercise of significant authority.
In August a three-judge panel of the D.C. Circuit upheld the constitutionality of the SEC’s law judges on grounds that their decisions are appealable. But that is true of all federal judges except the Supreme Court. Such appeals are also costly for defendants, leading many to settle rather than take their chances on an administrative judge likely to favor his agency.
The D.C. Circuit Court of Appeals tilts decidedly to the left since President Obama packed it in 2013 and looks favorably on government regulatory and prosecutorial power. But the Tenth Circuit Court of Appeals heard a similar case in December and ruled that the administrative law judges are unconstitutional. Judge Scott Matheson wrote that the Founders would never have tolerated unaccountable officers like administrative judges.
The Appointments Clause, Judge Matheson wrote, “promotes public accountability by identifying the public officials who appoint officers. And it prevents the diffusion of that power by restricting it to specific public officials.” The Founders limited the appointment power to keep government accountable to voters.
Administrative law judges exist at dozens of federal agencies. Their presence is a product of the ever-expanding federal bureaucracy and a guarantee of its growth, sparing agencies the more rigorous and time-consuming oversight by the federal courts. Even if the full D.C. Circuit finds these judges constitutional, this is an issue that the Supreme Court should settle.
Appeared in the May 31, 2017, print edition.
The Bureaucracy’s Judges
Courts consider if administrative law judges are constitutional.
May 30, 2017 7:19 p.m. ET
US Court of Appeals for the Federal Circuit building in Washington, DC. Photo: Alamy Stock Photo
The U.S. administrative state has grown so large that it is untethered to the original concept of the separation of powers, and a court case is trying to prove it. Last week the D.C. Circuit Court of Appeals heard a case on whether administrative law judges at the Securities and Exchange Commission are unconstitutional.
The Constitution’s Appointments Clause says “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States, whose Appointments are not herein otherwise provided for.” That’s a problem for the administrative law judges, who aren’t appointed by the President or even by the presidentially appointed SEC commissioners. They are hired by the agency’s career bureaucrats.
Yet these judges wield vast power and issue decisions in cases brought by the same agencies that sign their paychecks. Not surprisingly, the agencies make out pretty well. In 2013 the National Labor Relations Board, which also uses administrative law judges, boasted that it won 88% of the time.
The legal question is whether these judges count as “officers,” who exercise significant authority and thus require presidential appointment. So let’s see. In the case before the D.C. Circuit, Lucia v. SEC, an administrative law judge imposed some $300,000 in fines and banned Raymond Lucia from working as an investment adviser as punishment for a retirement plan that allegedly misled investors. Whether or not Mr. Lucia deserved that sanction, it strains credulity to argue that such punishment isn’t an exercise of significant authority.
In August a three-judge panel of the D.C. Circuit upheld the constitutionality of the SEC’s law judges on grounds that their decisions are appealable. But that is true of all federal judges except the Supreme Court. Such appeals are also costly for defendants, leading many to settle rather than take their chances on an administrative judge likely to favor his agency.
The D.C. Circuit Court of Appeals tilts decidedly to the left since President Obama packed it in 2013 and looks favorably on government regulatory and prosecutorial power. But the Tenth Circuit Court of Appeals heard a similar case in December and ruled that the administrative law judges are unconstitutional. Judge Scott Matheson wrote that the Founders would never have tolerated unaccountable officers like administrative judges.
The Appointments Clause, Judge Matheson wrote, “promotes public accountability by identifying the public officials who appoint officers. And it prevents the diffusion of that power by restricting it to specific public officials.” The Founders limited the appointment power to keep government accountable to voters.
Administrative law judges exist at dozens of federal agencies. Their presence is a product of the ever-expanding federal bureaucracy and a guarantee of its growth, sparing agencies the more rigorous and time-consuming oversight by the federal courts. Even if the full D.C. Circuit finds these judges constitutional, this is an issue that the Supreme Court should settle.
Appeared in the May 31, 2017, print edition.
