This guest post was authored by Daniel Baker, a summer associate with Montgomery McCracken. On June 21, 2018, the United States Supreme Court answered a seemingly straightforward question in Lucia v. SEC: whether the SEC’s in-house administrative law judges are “officers,” or “employees.” Distinguishing between the two categories is important because “officers” must be appointed through specific procedures set forth under the Constitution’s Article II Appointment Clause. Under this clause, individuals who are deemed to be “officers” must be appointed by the President, the courts, or head of their respective department. Such procedures do not apply if ALJs are deemed “employees,” however, allowing for a less stringent selection procedure defined by Congress. The Supreme Court ruled the SEC ALJs are officers, meaning they were unconstitutionally appointed by SEC staff members. The SEC…
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