It’s not often an appellate court agrees to re-hear a case en banc—that is, reexamine a decided case with all active judges participating—and when it does, usually it’s because the case is of particular importance. Today the federal appeals court in D.C. heard two such cases, and both address fundamental issues of due process and constitutional integrity. Heavy and exciting stuff. Cato filed amicus briefs in both cases, given their potential impact on core principles of liberty and the rule of law.
The first case, Lucia v. SEC, considers the role of the Administrative Law Judge (ALJ). While the case was nominally about whether ALJs are inferior officers, and therefore subject to certain constitutional appointment and removal proceedings, at its heart is the question: what makes a judge a judge?
Most Americans expect that if the government is going to haul them in for alleged wrongdoing, they’ll at least have their case heard by an impartial judge, with all the usual legal protections. And this is what Americans should expect. Unfortunately, some federal agencies operate differently, using their own internal administrative proceedings, with their own ALJs, to determine if someone has broken the rules, and to impose a fine or other punishment.
The vast majority of ALJs work for the Social Security Administration, determining whether individuals are eligible for benefits. As Lucia’s lawyer pointed out in argument today, there is a big difference between ALJs determining whether someone will receive something from the government, as the Social Security Administration’s ALJs do, and determining whether the government will take something from someone.
ALJs who oversee adversarial proceedings, such as those at the SEC along with a handful of other agencies, exercise a level of discretion and carry out responsibilities almost indistinguishable from those of judges in federal court. The SEC has argued that the crucial difference is that ALJs’ decisions are not technically final until the Commissioners themselves have signed off on them. But while the Commissioners review the ALJs’ application of the law, they do not review what is known as “findings of fact” or the admissibility of evidence. That means that the ALJs are the only people who decide what documents and testimony will be used to prove the case, listen to the witnesses and decide whether they’re telling the truth, and determine what “really” happened.
Read more at https://www.cato.org/blog/lucia-phh-two-cases-two-arguments-constitutional-principles
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