The Supreme Court held that the SEC’s appointment of ALJS violated the Constitution because SEC ALJs are “officers” and thus are subject to the Appointments Clause under the Court’s prior precedent.  This decision may have far-reaching consequences for other federal agencies that utilize ALJs because they are vulnerable to similar Appointments Clause challenges.  Further, while Lucia resolved one constitutional challenge to SEC ALJs, a concurrence by Justice Breyer highlights another significant constitutional question:  whether the statutory removal protections afforded to SEC ALJs are also unconstitutional.  Accordingly, Lucia presents a number of open questions, including whether the decision can be used to reopen prior SEC ALJ adjudications, how it will impact existing ALJs and the ALJ appointment process at other federal agencies, and whether SEC ALJs can survive a separate constitutional challenge to their removal protections.

DPW Client Note