During its most recent Term, the Supreme Court held in Lucia v. SEC that the administrative law judges (“ALJs”) that preside over adjudications at the Securities and Exchange Commission (“SEC”) are “Officers of the United States” who must be appointed pursuant to the Appointments Clause of the Constitution. 138 S.Ct. 2044, 2055 (2018). This holding necessarily calls into question the validity of the appointments of ALJs across diverse federal administrative agencies and their rulings. In light of this anticipated fall out, the Trump Administration moved swiftly to issue an Executive Order retooling the hiring process for ALJs. But whether the Court’s holding in Lucia will impact adjudications before the Federal Communications Commission (“Commission”) remains to be seen.
In Lucia v. SEC, the Court evaluated whether ALJs at the SEC are non-officer federal employees or “Officers” who must be appointed by either the President or “Heads” of the SEC under the Appointments Clause. Applying its “significant authority” test to analyze the ALJs’ position and powers, the Court noted that SEC ALJs have career appointments and maintain extensive powers, which the Court compared to those of a “federal district judge conducting a bench trial.” Based on their tenure and authority, the Court ultimately held SEC ALJs are “Officers” who must be appointed by “Heads” of the SEC to comply with our Constitution.
The Court’s holding opens the door to potential challenges brought against rulings by ALJs at other agencies based on their appointment process and powers. In light of the broad impact of the Court’s holding in Lucia, the Trump Administration indeed quickly issued an Executive Order to modify the hiring process for ALJs. Rather than selecting ALJs through the competitive service process, individual federal agencies may now directly hire ALJs going forward.
Lucia will likely have little impact at the Commission, however. The Commission directly appoints its ALJs, thus dodging potential challenges under the Appointments Clause. And while the Commission had a bevy of ALJs in the 1970s, their use has steadily declined over the years as Commission adjudications have become rarer. Today, the hearing process is used only infrequently and some Commissioners favor sunsetting it entirely.
At the end of the day, it will be business as usual at the Commission despite the recent judicial and executive actions.