June 21, 2018 1:48PM

High Court Reads and Applies Constitution

The Supreme Court issued a major separation-of-powers decision this morning, which may have more long-term ripple effects than the internet sales-tax case. In Lucia v. Securities and Exchange Commission, the Court rule 6.5-2.5 -- I'll explain shortly -- that SEC administrative law judges are "officers of the United States" and thus must be appointed by the president or the "department head," in this case the SEC itself (rather than being selected by commission staff). This is important because it makes ALJs, who make decisions with significant monetary and regulatory impact, more accountable to the political process -- instead of being mere creatures of the bureaucratic blob.

It’s gratifying that the Supreme Court takes constitutional structure seriously, at least with respect to the president’s appointment of inferior officers. Justice Elena Kagan’s majority opinion powerfully and concisely explains what was clear all along: ALJs are powerful officers with significant discretionary powers rather than mere clerks. That power and discretion is what sets officers apart from mere employees, as the Supreme Court explained in Freytag v. Commissioner (1991). Accordingly, ALJs should indeed be part of the executive branch’s chain of command instead of a nebulous part of the “fourth branch” administrative agencies. This ruling will increase accountability for these executive officers even as they perform quasi-judicial tasks and often represent the last real chance for those caught in the SEC’s investigatory clutches to defend themselves.

I only wish, as the government argued, that the Court had addressed the removal power, which is the flip-side to appointments. Only Justice Stephen Breyer's partial concurrence/partial dissent addressed that issue, whose resolution we'll have to await in some future case.

This is where my half-vote allocations come in. The majority opinion was joined in full by six justices: John Roberts, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch in addition to Kagan. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented in full. That leaves Breyer, who agreed that SEC ALJs were improperly appointed but on statutory (Administrative Procedure Act) not constitutional grounds. Breyer was particularly concerned that combining the majority's Lucia ruling with the holding in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) might require ALJs to be removable at will, throwing into doubt much of the administrative state's legitimacy. (Breyer also disagreed with the majority's remedy -- in this, Justices Ginsburg and Sotomayor joined him -- to vacate the ALJ's order and reassign the case to a different ALJ even though the one who had ruled here had subsequently been re-appointed by the SEC itself.)

Well look, even (and especially) if Breyer's fears about overturning the legally independent bureaucracy are valid, to me that's a feature, not a bug. In any case, Lucia will go down as a case where the Court actually reads what the Constitution says and applies, regardless of what that might mean for efficiency of government.