straightforward reading of that case. 44 In Freytag, the Court rejected the
government’s argument that a lack of authority to enter final decisions would
have made special trial judges mere employees. The Court believed such an
“argument ignore[d] the significance of the duties and discretion that special
trial judges possess.” 45 The Court mentioned finality simply as a possible
alternative basis for its holding, clarifying that even if the special trial judges’
duties had been less significant, the judges nonetheless still would have been
“officers” because they had final decision-making authority in some cases. 46
The D.C. Circuit’s conclusion that ALJs are non-officers also is incorrect
as a matter of first principles. Evidence suggests the original public meaning
of “officer” in Article II never embodied a final decision-making element—
or discretion, for that matter. 47 In contrast, the most likely original public
meaning of “officer” encompassed any federal official with ongoing
responsibility for carrying out a governmental duty “of any level of
importance.” 48 If a statute, for example, “authorizes the federal government
to complete a particular task or exercise a particular power, the individual
who maintains ongoing responsibility for the task is an ‘officer.’” 49
ALJs in general qualify under such a standard as they carry out
adjudicative functions that Congress has assigned via the Administrative
Procedure Act50 (APA). Section 556(b)( 3) of Title V of the U.S. Code, within
the APA, authorizes ALJs to, among other things, preside over agency
hearings, administer oaths, issue subpoenas, take depositions, and rule on
evidence. 51 In particular for the SEC, Section 78d- 1(a) of Title 15 provides
specific authority for the Commission to delegate any of its functions to its
ALJs. 52 The SEC, through regulation, has carried out this statutory authority
by authorizing its ALJs to conduct hearings and issue initial decisions on its
B. Executive Adjudicative “Officers” Must Be Appointed by the
44. See generally Freytag, 501 U.S. 868.
45. Id. at 881; see also Bandimere, 844 F.3d at 1182–84.
46. Freytag, 501 U.S. 881–82; see also Landry, 204 F.3d at 1142 (Randolph, J.,
concurring opinion) (explaining “that the Court clearly designated this as an alternative
47. See Mascott, supra note 8 (Introduction).
50. Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (codified as amended
in scattered sections of 5 U.S.C.).
51. 5 U.S.C. § 556(b)( 3).
52. 15 U.S.C. § 78d- 1(a); see also Bandimere, 844 F.3d at 1176–78 (describing statutory
authorization for various ALJ tasks).