Lucia and the Future of Administrative Adjudication

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Harvard Law School




What is to become of administrative adjudication and adjudicators? As the never-ending assault on the administrative state marches on, administrative adjudication is in the cross-hairs of reformers. The latest chapter in the ongoing controversy over the proper role of adjudication within administrative agencies is the Supreme Court’s recent decision in Lucia v. SEC, that SEC Administrative Law Judges (ALJs) are “Officers of the United States” and thus must be appointed pursuant to the Appointments Clause of the Constitution. What this means, in effect, is that all ALJs must be appointed either by the President, a Court of Law or a Department Head. In the Court’s view, the result in Lucia flowed inexorably from precedent, and thus did not constitute a significant extension or revision of existing law. But the decision papered over important lingering questions concerning administrative adjudication, which are likely to arise in the not-too-distant future.

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