May 01, 2019 Feature

ALJ Independence Under the Federal Administrative Procedure Act in the Wake of the Supreme Court’s Decision in Lucia v. SEC

By Judge Michael Devine and Judge Erin Wirth

In Lucia v. SEC, (2018)1 the U.S. Supreme Court found that Securities and Exchange Commission (SEC) administrative law judges (ALJs) are inferior officers who are required by the Appointments Clause under Article II of U.S. Constitution to be appointed by either the president, the courts of law, or the heads of departments. For decades, federal ALJs had been selected by an agency from a register of qualified applicants who had significant legal experience and received a qualifying high score after a complex competitive examination process. Although the Court in Lucia did not question this qualification and examination process, within a month of the Lucia decision, the president issued an Executive Order that eliminated the competitive examination and the requirement that an applicant have at least seven years of legal experience before being considered for an ALJ position.2

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