Legal Seminar, Chicago, IL

Lucia v. SEC Fallout – Phase 2

• The Office of the Solicitor General issued a memo titled “Guidance on Administrative Law Judges After Lucia v. SEC. ” • Guidance expanded the Lucia holding to give Executive Branch more power over ALJs. • Solicitor General will defend ALJs’ statutory removal protections (not at issue in Lucia ) only if the protection mechanism is “suitably deferential” to department heads. • Guidance expands Lucia in two key ways: • First, by understanding “inferior officers” to include both non-ALJ adjudicators and adjudicators who oversee non-adversarial proceedings. • Second, by reading Lucia as giving a green light to the Solicitor General’s position regarding removal of administrative adjudicators.

Lucia v. SEC Fallout – Phase 2 (cont.)

• Is the Environmental Protection Agency’s Environmental Appeals Board (EAB) and the Department of Interior’s Interior Board of Land Appeals (IBLA) Unconstitutionally Structured? • EAB and IBLA are the entities within the agency to which a person may appeal the agency’s ALJ decisions. Both have delegated authority from the head of the agency to make final decisions on behalf of the agency. • Neither, however, is staffed with ALJs. Congress did not create the EAB or IBLA and their decision are not subject to review by the respective Agency heads.