Amicus Brief: Lucia v. Securities and Exchange Commission


The petitioners in this case and the Solicitor General had capably explained why SEC administrative-law judges qualify as “officers of the United States,” who must be appointed in accordance with the process described in Article II of the Constitution. NCLA wrote as amicus to explain that the ostensible rationale for departing from the Constitution’s appointment process — a desire to produce “independent” administrative-law judges — was inapplicable in this case, as the SEC’s appointment process had failed to secure independent adjudication in any meaningful sense of the word.

SEC ALJs face significant institutional pressures to conform to the Commission’s enforcement policy preferences. Not only must SEC ALJs follow agency rules, interpretations, and policies, but they also lack subjectmatter expertise when appointed. This lack of prior expertise makes SEC ALJs vulnerable to pro-agency bias of various kinds, which they may not even recognize given how the bias is baked into agency precedent.

Avoiding the Appointments Clause has produced neither independence nor expertise among ALJs— quite the contrary. Hearings in front of ALJs at the SEC nowadays are neither impartial nor particularly expert. There was no reason for the Supreme Court  to fear that declaring administrative-law judges to be “officers of the United States” will undermine the independence (or expertise) of agency adjudication, because the SEC’s administrative-law judges are short of independence and expertise to begin with. More effective and constitutionally permissible paths are available to secure independent judges in SEC proceedings.

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CASE: Raymond J. Lucia, et al. v. Securities and Exchange Commission

COURT: U.S. Supreme Court

DOCUMENT: No. 17-130

COUNSEL FOR AMICUS CURIAE: Philip Hamburger, Mark Chenoweth, Peggy Little

FILED: February 28, 2018


February 28, 2018 | Brief of the New Civil Liberties Alliance as Amicus Curiae In Support of Petitioners
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