Appointments Clause—Classification of Administrative Law Judges

Lucia v. SEC, No. 17-130

Under the Constitution’s Appointments Clause, the President “shall nominate and, by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States.” SEC administrative law judges are generally selected by Commission staff, even though these judges preside over trial-like adversarial hearings. The Supreme Court has granted certiorari to decide “[w]hether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.” The circuit courts have split 5-5 on this question.