Lucia v. SEC and the Attack on the Administrative State

American Constitution Society Supreme Court Review 2017-2018

20 Pages Posted: 21 Dec 2018

See all articles by Steven D. Schwinn

Steven D. Schwinn

John Marshall Law School (Chicago)

Date Written: December 4, 2018

Abstract

In Lucia v. SEC, the Supreme Court held that Securities and Exchange Commission administrative law judges were “officers” under the U.S. Constitution’s Appointments Clause, and therefore required appointment by the president, or the SEC itself (and not, as they had been appointed, by SEC staff).

On the surface, the case is easy to overlook. But on a deeper level, Lucia has significant implications for presidential authority and the separation of powers. Indeed, we’ve already seen the president use the case to extinguish merit-based selection for ALJs, with a line of reasoning that could curtail all statutory appointment restrictions for independent and expert offices within the executive branch.

This consolidation of executive power — and potential politicization of independent and expert offices — is part of a larger effort to dismantle the administrative state. Other components include an attack on the Chevron doctrine, increasingly viable separation-of-powers challenges to statutory removal protections within the executive branch, and even the nondelegation doctrine. Within this context, Lucia is an important part of broader effort to reshape the separation of powers.

Keywords: appointments clause, separation of powers, executive authority

Suggested Citation

Schwinn, Steven D., Lucia v. SEC and the Attack on the Administrative State (December 4, 2018). American Constitution Society Supreme Court Review 2017-2018. Available at SSRN: https://ssrn.com/abstract=3295379

Steven D. Schwinn (Contact Author)

John Marshall Law School (Chicago) ( email )

315 South Plymouth Court
Chicago, IL 60604
United States
312.386.2865 (Phone)

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