“significant authority” 7 has far-reaching consequences. 8 The Appointments
Clause expressly limits the permissible methods for selecting “officers” to
appointment by (i) the President with Senate advice and consent, (ii) the Head
of a Department, (iii) a court of law, or (iv) the President alone. 9 (Principal
officers with no superior other than the President10 may be appointed only by
the President with Senate advice and consent, 11 but the SEC ALJs are being
challenged as “inferior officers”—not principal officers. 12)
If courts determine the SEC ALJs are “officers,” the process for selecting
those ALJs must change. The SEC concedes its ALJs currently are not
appointed by a department head or any other Article II-approved entity. 13
That said, a widely cited article by Professor Kent Barnett suggests that
one potential significant problem with agency adjudicators coming within
Article II’s scope is that agency adjudicators hear cases in which the agencies
themselves are parties. 14 Perhaps, Barnett suggests, executive branch
appointment, supervision, and involvement with the removal of ALJs creates
impermissible bias, as the adjudicator would be subject to hiring and possible
firing by one of the entities whose case she is deciding. 15 Professor Barnett
believes that under Supreme Court precedent such an arrangement may raise
due process concerns. 16 This is in addition to the often-acknowledged
potential Article III concerns with non-lifetime-tenured adjudicators hearing
disputes that appear similar to judicial cases and controversies. 17 To address
7. See Buckley v. Valeo, 424 U.S. 1, 125–26 (1976).
8. See generally Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 STAN.
L. REV. __ (forthcoming 2018) (draft manuscript, online at https://ssrn.com/abstract=2918952)
(addressing the import of the Appointments Clause).
9. U.S. CONST. art. II, § 2, cl. 2; Kent Barnett, Resolving the ALJ Quandary, 66 VAND. L.
REV. 797, 800 (2013).
10. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 510 (2010)
(describing Supreme Court precedent finding that “inferior officers are officers whose work is
directed and supervised at some level by other officers appointed by the President with the
Senate’s consent” (internal quotation omitted)).
11. See U.S. CONST. art. II, § 2, cl. 2.
12. See, e.g., Bandimere, 844 F.3d at 1170; Raymond J. Lucia Cos., 832 F.3d at 289.
13. See Raymond J. Lucia Cos., 832 F.3d at 283; see also Barnett, supra note 9, at 800
(“ALJs, however, are selected by heads of agencies, only some of whom qualify as heads of
14. See Barnett, supra note 9, at 799–802; see also Kent Barnett, Resolve the “ALJ
Quandary”: Let the D.C. Circuit Appoint and Remove ALJs, YALE J. ON REG.: NOTICE &
COMMENT (Jan. 2, 2017), http://yalejreg.com/nc/resolve-the-alj-quandary-let-the-d-c-circuit-appoint-and-remove-aljs-by-kent-barnett/.
15. See generally Barnett, supra note 9, at 799–802.
16. See id. at 801.
17. See, e.g., Stern v. Marshall, 564 U.S. 462, 482–95 (2011); N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 58–76, 87 (1982) (plurality opinion) (addressing non-Article III bankruptcy courts); cf. Barnett, supra note 9, at 798 (contending that “the function
of ALJs closely parallels that of Article III judges”).