There were some interesting questions today in the oral argument of the ALJ case of Lucia v. SEC. I think it is interesting to look at tangentially related cases to see if they hint where the Court is going with its IP cases. Several of the questions focused on ALJ independence and accountability.
JUSTICE KENNEDY: Could you address
14 the question that Justice Kagan and I asked
15 Mr. Perry? Assume that the perception and fact
16 of fairness and — and impartiality are
17 enhanced by independence. How does that factor
18 into what you’re arguing, and is it a proper
19 consideration for us in this case?
11 JUSTICE KAGAN: Mr. Wall, all of these
12 things go to the same thing. You know, you -
13 you want to keep decisional independence as
14 something that you’re not interfering with.
15 There are different ways to interfere
16 with decisional independence. One is by
17 docking somebody’s pay. One is by having a
18 removal power that you hang over your head.
19 And another is by being the person who gets to
20 decide who gets the job or not.
21 And so all of these things in some
22 manner tie the adjudicator more closely to the
23 political system. And the APA came up with
24 this foundational compromise which had as a
25 very significant part of it that the hearing
1 examiners, the adjudicators, would have some
2 detachment, would have some insulation from the
3 political system. Not the way an Article III
4 judge does, but still something.
5 And you want to ratchet that down.
6 And the question is, isn’t that interfering
7 with decisional independence?
8 CHIEF JUSTICE ROBERTS: One of the
9 principles that caused the drafters to give the
10 authority to appoint officers to the President
11 was the important one of accountability.
12 MR. METLITSKY: Exactly.
13 CHIEF JUSTICE ROBERTS: And in this
14 case, if — if the individual were an officer,
15 he would have to be appointed by the
16 Commission, and people would know who was
17 responsible for whatever conduct or misconduct
18 or decisions he would — he would take.
19 But in this case, you don’t have that
20 accountability. The Commission can say: Don’t
21 blame us. We didn’t do it. The President can
22 say: Don’t blame me. I didn’t appoint them.
23 And, instead, it’s something in the
24 administrative bureaucracy which operates as
25 insulation from the political accountability
1 that the drafters of the Constitution intended.
CHIEF JUSTICE ROBERTS: And it seems
to me, I mean, we’ve heard about the
independence of the adjudicator. You seem to
be suggesting that he is not an officer because
he doesn’t have the kind of independence that
has been suggested the APA and other things
were designed to promote.
The transcript is available [here].
You can listen to the oral argument here: