Federal regulatory agencies bring thousands of civil enforcement actions every year. The vast majority of these cases are heard, not by independent judges, but by Administrative Law Judges hired and employed by the agencies bringing suit. Supporters say ALJs streamline the enforcement process, claim the judges are protected from conflicts of interest, and note that ALJ decisions can be appealed to independent Article III courts. Critics claim the scenario denies defendants due process because ALJs can never be wholly independent and suggest that the option of a later appeal drags accused individuals through lengthy and expensive trial proceedings for no good reason.
But what if Administrative Law Judges are unconstitutional? In a case the U.S. Supreme Court will hear in April (Lucia v. SEC), the Justices will determine whether the Securities and Exchange Commission’s ALJs exercise sufficient power to be considered “officers of the United States” within the meaning of the Constitution’s appointments clause. If they are, the High Court may conclude that ALJs must be nominated by the President and confirmed by the Senate – a decision that could call into question many thousands of enforcement actions concluded over the past several decades and change the way regulatory agencies operate.
Join us as our expert panel of litigators and legal scholars discuss the meaning of the Lucia case and how the Court is likely to resolve it. They will also tackle the thorny questions of how agencies should respond if the Court holds ALJs unconstitutional.
This briefing will feature:
Assistant Professor, George Mason University Antonin Scalia Law School
Mark A. Perry
Partner, Gibson, Dunn & Crutcher LLP
Professor, George Washington University Law School