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Post by Top Tier on May 16, 2022 20:13:43 GMT -5
I guess this shouldn't come as a surprise... "WASHINGTON (CN) — Four years after the Supreme Court cracked down on how judges are appointed within the Securities and Exchange Commission, the justices took up a case Monday that says these agency decision-makers are unconstitutionally insulated from removal.... At the time, the judges at the SEC came to power via appointed by agency staff members. In 2018, however, the Supreme Court ruled in Lucia v. SEC that such officers must be appointed by the president, a court of law or a department head per the Appointments Clause. Cochran’s case was reassigned to a properly appointed judge, but she said there was a new problem: that ALJs, as such judges are known, are unconstitutionally insulated from the president’s Article II removal power through multiple layers of “for-cause” removal protection... www.courthousenews.com/supreme-court-will-study-new-effort-to-rein-in-sec-judges/www.courthousenews.com/wp-content/uploads/2022/05/sec-cochran-petition.pdf |
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Post by ba on May 17, 2022 7:31:38 GMT -5
I guess this shouldn't come as a surprise... "WASHINGTON (CN) — Four years after the Supreme Court cracked down on how judges are appointed within the Securities and Exchange Commission, the justices took up a case Monday that says these agency decision-makers are unconstitutionally insulated from removal.... At the time, the judges at the SEC came to power via appointed by agency staff members. In 2018, however, the Supreme Court ruled in Lucia v. SEC that such officers must be appointed by the president, a court of law or a department head per the Appointments Clause. Cochran’s case was reassigned to a properly appointed judge, but she said there was a new problem: that ALJs, as such judges are known, are unconstitutionally insulated from the president’s Article II removal power through multiple layers of “for-cause” removal protection... www.courthousenews.com/supreme-court-will-study-new-effort-to-rein-in-sec-judges/www.courthousenews.com/wp-content/uploads/2022/05/sec-cochran-petition.pdf Maybe I’m misreading the issue in the petition, but isn’t it whether a district court has jurisdiction to examine the issue at all or whether the Exchange Act strips the district court of jurisdiction over the issue? |
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Post by superalj on May 17, 2022 7:50:16 GMT -5
SCOTUS is not friendly to ALJs and has shown that it can be very friendly to authoritarian leadership if it’s from a certain political party. My prediction is that a new POTUS will remove most of the ALJ corps if cause is not needed for political reasons. Hopefully, I am wrong.
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Post by rp on May 17, 2022 8:54:08 GMT -5
SCOTUS is not friendly to ALJs and has shown that it can be very friendly to authoritarian leadership if it’s from a certain political party. My prediction is that a new POTUS will remove most of the ALJ corps if cause is not needed for political reasons. Hopefully, I am wrong. Perhaps the excepted service - and I say perhaps. But for those of us in competitive service, how would we be removed? Just curious about that theory. |
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Post by caroline on May 17, 2022 9:27:07 GMT -5
The argument will be that (under the reasoning set forth in Lucia), since ALJs are inferior officers, any removal protection is unconstitutional, and that includes competitive service protections.
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Post by fowlfinder on May 17, 2022 10:00:22 GMT -5
Then they better be willing to expand the federal judiciary because getting rid of the ALJ corp wholesale without a replacement will make the federal judiciary look like an underfunded public defenders office after the holidays.
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Post by hopefalj on May 17, 2022 10:08:39 GMT -5
Then they better be willing to expand the federal judiciary because getting rid of the ALJ corp wholesale without a replacement will make the federal judiciary look like an underfunded public defenders office after the holidays. I’ll happily volunteer to convert to an Article III gig. |
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Post by superalj on May 17, 2022 10:42:48 GMT -5
Then they better be willing to expand the federal judiciary because getting rid of the ALJ corp wholesale without a replacement will make the federal judiciary look like an underfunded public defenders office after the holidays. Maybe that’s the point but I think “loyal and vetted” ALJs would remain if there is a purge. It already started at the end of last POTUS term according the the former Secretary of Defense who wrote that senior military officers would going to be “interviewed” by political appointees. Just look at what has happened in Hungary for a dystopian preview of what could be the future of our democracy. |
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Post by rp on May 17, 2022 11:55:31 GMT -5
The argument will be that (under the reasoning set forth in Lucia), since ALJs are inferior officers, any removal protection is unconstitutional, and that includes competitive service protections. Huh. Well I think there is a difference between not being able to hear cases and being fired. The two are not necessarily the same. But I digress. No need to worry about things that may or may not happen. |
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Post by someconcerns on May 17, 2022 11:59:33 GMT -5
SCOTUS is not friendly to ALJs and has shown that it can be very friendly to authoritarian leadership if it’s from a certain political party. My prediction is that a new POTUS will remove most of the ALJ corps if cause is not needed for political reasons. Hopefully, I am wrong. Perhaps the excepted service - and I say perhaps. But for those of us in competitive service, how would we be removed? Just curious about that theory. There is literally no difference in the applicability 5 USC 7521 to competitive or excepted service ALJs. |
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Post by neufenland on May 17, 2022 17:19:49 GMT -5
Then they better be willing to expand the federal judiciary because getting rid of the ALJ corp wholesale without a replacement will make the federal judiciary look like an underfunded public defenders office after the holidays. I think the majority of the Supreme Court couldn’t give two figs about how their rulings impact people with administrative benefit claims. |
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Post by jagvet on May 17, 2022 23:11:21 GMT -5
SCOTUS is not friendly to ALJs and has shown that it can be very friendly to authoritarian leadership if it’s from a certain political party. My prediction is that a new POTUS will remove most of the ALJ corps if cause is not needed for political reasons. Hopefully, I am wrong. You are wrong. This POTUS actually removed Commissioner Andrew Saul and his deputy under authority of the appointments clause despite Saul's statutory tenure. This POTUS can remove any or all ALJs if he wishes. No need to wait until the next POTUS to worry about it. If Biden fired all ALJs today, he could open over a thousand senior patronage ALJ slots. |
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Post by ba on May 18, 2022 7:52:43 GMT -5
SCOTUS is not friendly to ALJs and has shown that it can be very friendly to authoritarian leadership if it’s from a certain political party. My prediction is that a new POTUS will remove most of the ALJ corps if cause is not needed for political reasons. Hopefully, I am wrong. You are wrong. This POTUS actually removed Commissioner Andrew Saul and his deputy under authority of the appointments clause despite Saul's statutory tenure. This POTUS can remove any or all ALJs if he wishes. No need to wait until the next POTUS to worry about it. If Biden fired all ALJs today, he could open over a thousand senior patronage ALJ slots. That’s not legally accurate. There is considerable difference in Congress’s ability to restrict the removal of an officer based on whether the officer is a principal officer and whether the officer is an inferior officer. The COSS is a principal officer with singular control (as opposed to a staggered board), over which the President retains plenary firing authority. Inferior officers can have restrictions placed on their removal, such as good cause, by Congress. And that doesn’t even begin to address that Free Enterprise, which was about multiple layers of restrictions, involved a policy making inferior officer, as opposed to adjudicative inferior officers, over whom there are considerable reasons for a more restrictive removal rule. |
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Post by neufenland on May 18, 2022 10:16:02 GMT -5
You are wrong. This POTUS actually removed Commissioner Andrew Saul and his deputy under authority of the appointments clause despite Saul's statutory tenure. This POTUS can remove any or all ALJs if he wishes. No need to wait until the next POTUS to worry about it. If Biden fired all ALJs today, he could open over a thousand senior patronage ALJ slots. That’s not legally accurate. There is considerable difference in Congress’s ability to restrict the removal of an officer based on whether the officer is a principal officer and whether the officer is an inferior officer. The COSS is a principal officer with singular control (as opposed to a staggered board), over which the President retains plenary firing authority. Inferior officers can have restrictions placed on their removal, such as good cause, by Congress. And that doesn’t even begin to address that Free Enterprise, which was about multiple layers of restrictions, involved a policy making inferior officer, as opposed to adjudicative inferior officers, over whom there are considerable reasons for a more restrictive removal rule. I don't think most of us on here-who have extensive administrative law practice experience and understand the vast complexity of the federal government over the last 80 years-will disagree with that. The problem is that we aren't the five people who will get to make that call. In 1789, you see, there were no ALJs...so clearly that's the metric we should use for an industrialized modern nation of over 300 million people. That's as close as I'm getting to the "line," Pixie, I promise. |
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Post by generalsherman on May 18, 2022 14:59:57 GMT -5
I don’t know if Twitter links work on here but the 5th Circuit today ruled removal protections for SEC ALJs are unconstitutional.
Edit: also the entire SEC administrative process. Good times.
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Post by lawyeredbylaws on May 18, 2022 15:31:10 GMT -5
If you apply the logic of the SEC case today, then all disability claims are entitled to a federal trial. Claimants will be waiting so long once the Court eliminates ALJs.
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Post by nylawyer on May 18, 2022 15:50:33 GMT -5
If you apply the logic of the SEC case today, then all disability claims are entitled to a federal trial. Claimants will be waiting so long once the Court eliminates ALJs. From a quick reading, there a some pretty important distinctions in that Jarkesey case (which I offer no opinion on, I seriously looked for about 2 minutes) from what SSA ALJs do. The SEC ALJ imposed hefty civil fines. SSA ALJs have no such power. |
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Post by recoveringalj on May 18, 2022 17:29:18 GMT -5
Jury trials! Oh boy. Talk about having it out for the APA.
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Post by neufenland on May 18, 2022 18:33:46 GMT -5
If you apply the logic of the SEC case today, then all disability claims are entitled to a federal trial. Claimants will be waiting so long once the Court eliminates ALJs. Insanity. |
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Post by neufenland on May 18, 2022 19:15:06 GMT -5
If you apply the logic of the SEC case today, then all disability claims are entitled to a federal trial. Claimants will be waiting so long once the Court eliminates ALJs. I'm not sure disability claims are the same as civil penalty actions, since they are affirmative benefits sought by an individual as claimant vs. enforcement actions brought by the government as claimant against an individual (or corporation, etc.). I mean, who knows? Might be a distinction without a difference. But if SSA/VA/DOL disability claimants are somehow found to be entitled to USDC jury trials, then all of us are all going to be far too busy serving on federal juries to care about much else... |
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