CEI Comments on Supreme Court Lucia Ruling Upholding Democratic Accountability

Screen Shot 2018-06-21 at 4

The U.S. Supreme Court’s ruling today in Lucia v. SEC held that Administrative Law Judges (ALJs) are officers who must be appointed by, at least, the head of a government agency.

Competitive Enterprise Institute attorney Devin Watkins says the ruling boosts government accountability, but an omission by the court may lead to bigger problems:

“The opinion today reinforces political accountability by requiring high-level presidential appointees, not the Chief ALJ himself, to choose who fills these powerful ALJ positions. But the looming question unanswered by the court concerns who has the power to remove ALJs. Precedent requires that the President have the direct or indirect power to remove these ALJs.

“But if the President can directly remove ALJs, that could pose a due process problem in adversarial hearings in which the President can remove an adjudicator with whom he disagrees. This is why the dissent in today’s opinion says the court risks ‘unraveling, step-by-step, the foundations of the Federal Government’s administrative adjudication system.’

“To the extent that the current administrative adjudication system is unconstitutional, it should be unraveled. We look forward to a future decision on removal taking us one step closer to that day when we return to Article III courts on adversarial contests against the government.”

In today’s ruling, the court declined to consider the removal of ALJs, despite being asked to do so by the Solicitor General.