Today, the Supreme Court agreed to consider whether the hiring of SEC Administrative Law Judges violates the appointments clause of the Constitution. The Supreme Court will resolve the split between the D.C. Circuit and the Tenth Circuit as to whether ALJs are “inferior officers” or regular federal employees. In recent years, respondents in SEC administrative enforcement actions before ALJs have challenged the authority of ALJs to preside over their hearings as violating the Appointments Clause. If the court finds that ALJs are inferior officers, and were not properly appointed, it could open the door to challenges of prior rulings handed down by ALJs who weren’t hired under the provisions required in the appointments clause. The Supreme Court’s decision may also have implications for other federal agencies, such as FERC, and other regulatory bodies, such as the PCAOB.
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