WASHINGTON, June 21, 2018 /PRNewswire-USNewswire/ -- The U.S. Supreme Court today issued a decision confirming that the administrative law judges (ALJs) of the Securities and Exchange Commission (SEC) are "Officers of the United States." Therefore, under the Appointments Clause of Article II of the U.S. Constitution, they must be appointed either by the President or the SEC Commissioners. In effect, this opinion clarifies that administrative law judge Elliot "… heard and decided Lucia's case without a constitutional appointment." The Court further commented that all five SEC ALJs were unconstitutionally selected by staff members, not properly appointed by the Commissioners.
"Our goal was to ensure that there would be a large majority against the SEC, and it is gratifying that that has happened," said Philip Hamburger, NCLA Board Chairman and President. "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."
"While serving on the U.S. Court of Appeals for the D.C. Circuit when it considered the Lucia case, I was of the opinion that Freytag's analysis would decide this case," said the Hon. Janice Rogers Brown, Chairman of the NCLA Board of Advisors. "I am pleased that the Supreme Court reached the same conclusion today."
"I am pleased that the Supreme Court underscored the Constitution's requirement of accountability for unelected ALJs who wield significant power," said Mark Chenoweth, NCLA Executive Director and General Counsel. "Insisting on proper appointment ensures neither independence nor expertise for ALJs, but, as Justice Thomas observed, it '…maintains clear lines of accountability—encouraging good appointments and giving the public someone to blame for bad ones.'"
The New Civil Liberties Alliance is a nonprofit civil liberties organization dedicated to protecting constitutional rights from the administrative state. Recognizing that the administrative state is a profound threat to civil liberties, NCLA brings pro bono litigation against administrative power and more broadly seeks to spur a new civil liberties movement to fight against the erosion of Americans' basic constitutional rights. Founded by prominent legal scholar, Philip Hamburger, NCLA is headquartered in Washington, D.C.
About Philip Hamburger
Philip Hamburger, a scholar of constitutional law and its history, is The Maurice and Hilda Friedman Professor of Law at Columbia Law School. His publications include: Law and Judicial Duty (Harvard 2008); Is Administrative Law Unlawful? (Chicago 2014); Liberal Suppression (Chicago 2018) as well as numerous scholarly and general audience articles. Before arriving at Columbia, he was the John P. Wilson Professor at the University of Chicago Law School. He also has taught at George Washington University Law School, Northwestern Law School, University of Virginia Law School, and the University of Connecticut Law School.
Contact: Joe Martyak
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SOURCE New Civil Liberties Alliance