The United States Court of Appeals for the 10th Circuit in Denver ruled last week in Bandimere v. S.E.C. that the method for hiring the administrative judges was unconstitutional because they were “inferior officers” who must be selected by the S.E.C.’s commissioners rather than brought in as regular employees of the agency. This is the opposite of the conclusion reached by the federal appeals court in Washington in August in Lucia v. S.E.C., which held that their appointments did not violate the Constitution because they were only employees who could be hired like anyone else at the agency.
It is hard to get a starker contrast than that, which is why the Supreme Court is likely to step in to decide which label applies to the judges to determine whether the Appointments Clause applies.
‘Enforcement 40’ for 2020
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