{"id":9738,"date":"2018-04-23T18:06:47","date_gmt":"2018-04-24T00:06:47","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=9738"},"modified":"2018-05-01T10:35:45","modified_gmt":"2018-05-01T16:35:45","slug":"lucia-v-sec-and-alj-independence-and-accountability","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=9738","title":{"rendered":"Lucia v. SEC and ALJ independence and accountability"},"content":{"rendered":"

There were some interesting questions today in the oral argument of the ALJ case of Lucia v. SEC<\/em>. \u00a0I think it is interesting to look at tangentially related cases to see if they hint where the Court is going with its IP cases. \u00a0Several of the questions focused on ALJ independence and accountability.<\/p>\n

 <\/p>\n

JUSTICE KENNEDY:\u00a0 Could you address<\/p>\n

14\u00a0\u00a0\u00a0 the question that Justice Kagan and I asked<\/p>\n

15\u00a0\u00a0\u00a0 Mr. Perry?\u00a0 Assume that the perception and fact<\/p>\n

16\u00a0\u00a0\u00a0 of fairness and — and impartiality are<\/p>\n

17\u00a0\u00a0\u00a0 enhanced by independence.\u00a0 How does that factor<\/p>\n

18\u00a0\u00a0\u00a0 into what you’re arguing, and is it a proper<\/p>\n

19\u00a0\u00a0\u00a0 consideration for us in this case?<\/p><\/blockquote>\n

 <\/p>\n

 <\/p>\n

11\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 JUSTICE KAGAN:\u00a0 Mr. Wall, all of these<\/p>\n

12\u00a0\u00a0\u00a0 things go to the same thing.\u00a0 You know, you -\u00ad<\/p>\n

13\u00a0\u00a0\u00a0 you want to keep decisional independence as<\/p>\n

14\u00a0\u00a0\u00a0 something that you’re not interfering with.<\/p>\n

15\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There are different ways to interfere<\/p>\n

16\u00a0\u00a0\u00a0 with decisional independence.\u00a0 One is by<\/p>\n

17\u00a0\u00a0\u00a0 docking somebody’s pay.\u00a0 One is by having a<\/p>\n

18\u00a0\u00a0\u00a0 removal power that you hang over your head.<\/p>\n

19\u00a0\u00a0\u00a0 And another is by being the person who gets to<\/p>\n

20\u00a0\u00a0\u00a0 decide who gets the job or not.<\/p>\n

21\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And so all of these things in some<\/p>\n

22\u00a0\u00a0\u00a0 manner tie the adjudicator more closely to the<\/p>\n

23\u00a0\u00a0\u00a0 political system.\u00a0 And the APA came up with<\/p>\n

24\u00a0\u00a0\u00a0 this foundational compromise which had as a<\/p>\n

25\u00a0\u00a0\u00a0 very significant part of it that the hearing<\/p>\n

1\u00a0\u00a0\u00a0 examiners, the adjudicators, would have some<\/p>\n

2\u00a0\u00a0\u00a0 detachment, would have some insulation from the<\/p>\n

3\u00a0\u00a0\u00a0 political system.\u00a0 Not the way an Article III<\/p>\n

4\u00a0\u00a0\u00a0 judge does, but still something.<\/p>\n

5\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And you want to ratchet that down.<\/p>\n

6\u00a0\u00a0\u00a0 And the question is, isn’t that interfering<\/p>\n

7\u00a0\u00a0\u00a0 with decisional independence?<\/p>\n

 <\/p><\/blockquote>\n

 <\/p>\n

8\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CHIEF JUSTICE ROBERTS:\u00a0 One of the<\/p>\n

9\u00a0\u00a0\u00a0 principles that caused the drafters to give the<\/p>\n

10\u00a0\u00a0\u00a0 authority to appoint officers to the President<\/p>\n

11\u00a0\u00a0\u00a0 was the important one of accountability.<\/p>\n

12\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 MR. METLITSKY:\u00a0 Exactly.<\/p>\n

13\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CHIEF JUSTICE ROBERTS:\u00a0 And in this<\/p>\n

14\u00a0\u00a0\u00a0 case, if — if the individual were an officer,<\/p>\n

15\u00a0\u00a0\u00a0 he would have to be appointed by the<\/p>\n

16\u00a0\u00a0\u00a0 Commission, and people would know who was<\/p>\n

17\u00a0\u00a0\u00a0 responsible for whatever conduct or misconduct<\/p>\n

18\u00a0\u00a0\u00a0 or decisions he would — he would take.<\/p>\n

19\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 But in this case, you don’t have that<\/p>\n

20\u00a0\u00a0\u00a0 accountability.\u00a0 The Commission can say:\u00a0 Don’t<\/p>\n

21\u00a0\u00a0\u00a0 blame us.\u00a0 We didn’t do it.\u00a0 The President can<\/p>\n

22\u00a0\u00a0\u00a0 say:\u00a0 Don’t blame me.\u00a0 I didn’t appoint them.<\/p>\n

23\u00a0\u00a0\u00a0 And, instead, it’s something in the<\/p>\n

24\u00a0\u00a0\u00a0 administrative bureaucracy which operates as<\/p>\n

25\u00a0\u00a0\u00a0 insulation from the political accountability<\/p>\n

1\u00a0\u00a0\u00a0 that the drafters of the Constitution intended.<\/p>\n

 <\/p>\n

 <\/p><\/blockquote>\n

 <\/p>\n

CHIEF JUSTICE ROBERTS:\u00a0 And it seems<\/p>\n

to me, I mean, we’ve heard about the<\/p>\n

independence of the adjudicator.\u00a0 You seem to<\/p>\n

be suggesting that he is not an officer because<\/p>\n

he doesn’t have the kind of independence that<\/p>\n

has been suggested the APA and other things<\/p>\n

were designed to promote.<\/p><\/blockquote>\n

The transcript is available [here<\/a>].<\/p>\n

You can listen to the oral argument here:<\/p>\n\nhttp:\/\/www.717madisonplace.com\/wp-content\/uploads\/2018\/04\/17-130.mp3<\/a><\/audio>\n","protected":false},"excerpt":{"rendered":"

There were some interesting questions today in the oral argument of the ALJ case of Lucia v. SEC. \u00a0I think it is interesting to look at tangentially related cases to see if they hint where the Court is going with its IP cases. \u00a0Several of the questions focused on ALJ independence and accountability.   JUSTICE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9738"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9738"}],"version-history":[{"count":6,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9738\/revisions"}],"predecessor-version":[{"id":9756,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/9738\/revisions\/9756"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9738"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9738"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9738"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}