The Solicitor General filed a brief urging the Supreme Court to grant certiorari and settle a circuit split over whether the SEC’s Administrative Law Judges (ALJs) have been unconstitutionally appointed to their posts. The Solicitor General’s brief reversed the agency’s position that its ALJs are employees not subject to the Appointments Clause. In addition, the Solicitor General questioned the validity of statutory restrictions on the removal of ALJs. While the SEC did not sign the Solicitor General’s brief, it did attempt to cure the potential unconstitutionality of its appointments via a November 2017 order ratifying the appointments of its ALJs.

DOJ Brief

Davis Polk Client Update