Amicus Brief of Professor Jennifer L. Mascott in Lucia v. SEC, 17-130

Abstract

The question before the Supreme Court in Lucia v. SEC is whether administrative law judges in the Securities and Exchange Commission are "Officers of the United States" subject to the Appointments Clause in Article II of the U.S. Constitution. This brief contends that the Court should consider that question in light of the original public meaning of the Appointments Clause, U.S. Const. art. II, § 2, cl. 2. Substantial evidence from the late eighteenth century suggests that the Clause historically encompassed every federal civil official with ongoing responsibility to carry out a statutory duty. The brief explains how the SEC's ALJs qualify as "Officers of the United States" under that standard and how the historic "statutory duty" standard fits in with Supreme Court precedent interpreting the Appointments Clause.

Keywords: Administrative Law, Constitutional Law, Constitutional Interpretation, Appointments Clause, Agency Adjudication, Securities and Exchange Commission, Administrative Law Judges, Original Public Meaning, Corpus Linguistics