Lucia v. SEC and ALJ independence and accountability

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.





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:

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