On Thursday, the Supreme Court issued a decision in Lucia v. SEC, Dkt. No. 17–130, holding that the SEC’s previous practice in hiring administrative law judges (“ALJs”) was unconstitutional—calling into question the validity of the proceedings and holdings of SEC ALJs that decide the vast majority of contested SEC enforcement actions. With this decision, the Court resolved an outstanding circuit split as to whether SEC ALJs are “officers” of the United States subject to the requirement of the Appointments Clause that all such officers be appointed by the President, “courts of law,” or “heads of department.” The Court concluded that ALJs are “officers” who must be appointed pursuant to the Appointments Clause but, in doing so, declined to address a number of open questions that follow from this significant decision.
‘Enforcement 40’ for 2020
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