“A. This ALJ Cannot Avoid Violating Article II of the United States Constitution by Adopting the Division’s Statutory Interpretation.

In the hopes of avoiding what it recognizes as a dire Article II problem that makes this proceeding unconstitutional, the Division has ignored the Supreme Court’s ruling in this very case and has presented arguments already rejected by the Court. Indeed, the Division relies on two arguments to avoid this “embedded constitutional question,” both of which were presented by the Solicitor General to the United States to the Supreme Court. See Lucia v. S.E.C., 138 S. Ct. 2044, 2060 (2018) (Breyer, J., concurring). But neither argument carried the day before the Court, and, as Justice Breyer noted, the Court’s opinion in Lucia, merely clarified the constitutional problem underlying this proceeding. See id.

Initially, it must be noted that the Division appears to concede that the tenure protections governing this ALJ violate Article II, at least if they are interpreted in their most natural sense. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 483 (2010) (If “the President cannot remove an officer who enjoys more than one level of good-cause protection,” and “[t]hat judgment is instead committed to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagrees with him,” then this will contravene the President’s “constitutional obligation to ensure the faithful execution of the laws.”). This is hardly surprising, as the Solicitor General already identified this issue as “raising serious constitutional concerns,” which render these administrative proceedings subject to constitutional infirmity. Brief of Solicitor General for Respondent, Securities and Exchange Commission, Lucia v. S.E.C., 138 S.Ct. 2044, (No. 17- 130) at 45, 46. Indeed, the Division’s sole line of attack is to rely on “constitutional avoidance principles,” to try to salvage the scheme at issue here. (Division Opp. at 14.)”

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