SEC Administrative Proceedings After Lucia

By Daniel Walfish (June 27, 2018, 4:16 PM EDT) -- On June 21, 2018, the U.S. Supreme Court held, in Lucia v. SEC, that the U.S. Securities and Exchange Commission's administrative law judges, or ALJs, are not mere federal employees but "officers" covered by the Constitution's appointments clause. That means that the ALJs have to be appointed directly by a "head of department" (in this case the SEC's five commissioners) or, in theory, by the president or the courts. Until now, the SEC's ALJs were installed through a civil service hiring process without direct involvement from the commissioners. The case is a significant development in administrative law, and in its aftermath, the SEC will probably have to redo many of its pre-Lucia administrative proceedings, or APs, potentially straining its resources. However, in the long run, the SEC's APs probably will not be materially affected by Lucia....

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