June 21, 2018, may turn out to be a landmark day in the annals of the effort to dismantle the administrative state. On that date, the U.S. Supreme Court handed down its decisions in Lucia v. SEC[1], and South Dakota v. Wayfair, Inc.[2] Superficially, the two decisions may appear entirely unrelated, and scarcely likely to lead to the sort of dramatic changes in methods of governance envisioned by those who advocate dismantling the administrative state. Read more closely and particularly in conjunction with the decision handed down a few days later in Janus v. American Federation of State, County and Municipal Employees,[3] these decisions give those who advocate for this outcome reason for optimism that they might achieve their objective through the very courts whose decisions have for many years been derided as the product of judicial activism.

In Lucia, the Court held that administrative law judges used by the SEC to initially resolve administrative enforcement actions are “Officers of the United States” rather than mere employees of the Securities and Exchange Commission. It reached that conclusion, at least in part, because “an SEC ALJ exercises authority ‘comparable to’ that of a federal district judge conducting a bench trial.” Because the ALJ — i.e., the Officer of the United States — who presided over the hearing in Lucia’s case was not appointed in conformity with the appointments clause (U.S. Const. Art. II, Sec. 2, cl. 2), the Court ordered the case remanded to the SEC for a new hearing conducted before an ALJ (a) different from the ALJ who had presided over the previous hearing in the case, and (b) who was appointed in conformity with the appointments clause.

The Court’s decisions in Wayfair and Janus do not deal directly with administrative law issues. But they do suggest that more Justices now on the Court are willing to recognize greater limits on the principle of stare decisis. In both Wayfair and Janus, the Court overruled longstanding precedents that dealt with constitutional issues. In the earlier of these decisions, the Chief Justice wrote a dissenting opinion (in which three other Justices joined) arguing that stare decisis considerations should prevent the Court from overruling two precedents that turned on a constitutional question, even if the majority of now-sitting justices viewed them as wrongly decided. Six days later, the Chief Justice joined a majority that similarly overruled a precedent on the ground the constitutional question at issue had been wrongly resolved when it was previously addressed by the Court. Necessarily, the majorities (comprised of different combinations of Justices) in each case concluded stare decisis was not an insurmountable obstacle to overruling precedents involving constitutional principles.

Why we should feel emboldened by Lucia

If the only thing that happens on remand in the Lucia case is that the case is retried before a different ALJ who has been appointed in conformity with the appointments clause, there is little reason to think the final outcome of the proceeding before the SEC will be materially different from the final SEC Order that preceded the Supreme Court’s June 21 decision in Lucia.

In administrative enforcement actions conducted before the SEC, the Commission’s enforcement staff is the prosecutor, and the Commissioners ultimately determine both the facts and the law. The new ALJ will be someone appointed to that post by the Commission.[4] Even if the new ALJ makes factual findings that (if accepted by the SEC) would lead to a final outcome more favorable to Lucia than that embodied in the now vacated SEC order, the SEC’s enforcement staff can presumably ensure that the record developed in the new hearing includes at least the same evidence found in the record created in the prior hearing over which the improperly appointed ALJ had presided.

So long as the record that comes before the Commission includes “substantial evidence” that supports the Commission’s original findings, the Commission can once again make the same findings and impose identical sanctions to those previously imposed. Under current law governing judicial review of administrative decisions, the SEC’s findings will be affirmed if the case is reviewed by a Court of Appeals and the findings are supported by “substantial evidence” in the record.[5]

For those concerned with the niceties and nuances of what constitutes the rendition of justice and due process in the course of administrative proceedings, it is worth noting that the “substantial evidence” needn’t be evidence that would be admissible against Lucia if the SEC’s case against him were presented, in the first instance, in a U.S. District Court. Under the SEC’s rules of procedure (which the SEC itself promulgates) the Federal Rules of Evidence don’t apply, and the Commission may rely on evidence that would be inadmissible in a court of law.[6]

But what if, on remand, Lucia makes a more far-reaching constitutional challenge to the SEC’s administrative enforcement process? Specifically, what could happen if Lucia (or a respondent in some other federal administrative enforcement proceeding, whether before the SEC or some other federal administrative authority) asserts that the administrative enforcement process represents an unconstitutional exercise of federal judicial power by an administrative body not properly constituted as an “inferior Court” pursuant to Article III of the U.S. Constitution – i.e., a court whose judges hold office “during good Behaviour” and whose compensation “shall not be diminished during their continuance in office” as required by U.S. Const. Art. III, Sec. 1?

The Supreme Court’s observation in Lucia that the SEC’s ALJs exercise authority comparable to that exercised by federal district judges should embolden Lucia and his lawyers, as well as lawyers defending other persons charged in administrative enforcement proceedings (not only before the SEC, but also before other federal administrative bodies) with violating federal laws to challenge the legitimacy of the administrative enforcement process on precisely these grounds. Such a challenge is now warranted by the plain language of U.S. Const. Art. III, Secs. 1 and 2, which provide, in relevant part:

  1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
  2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, . . . – to Controversies to which the United States shall be a Party . . . .

The explicit recognition (in Lucia) that the SEC’s ALJs (and, necessarily, the Commission itself) exercise authority comparable to that of a federal district judge effectively confirms that when a federal administrative body exercises statutorily conferred administrative enforcement authority, that administrative body is actually exercising judicial power which is supposed to be vested entirely in courts constituted and presided over by judges serving in accordance with Art. III, Secs. 1 and 2.

It should be beyond dispute that when an arm of the federal government commences any form of legal proceeding to enforce the laws of the United States against some private person, whether an individual or an entity, that proceeding is a “case” within the meaning of U.S. Const. Art. III, Sec. 2. Were that not so, federal court review of the administrative agency’s final decision — a feature embodied in most federal statutes authorizing administrative adjudications involving federal law because such review is deemed to be a constitutionally mandated element of due process (see Mathews v. Eldridge, 424 U.S. 319, 349 (1976)) — would not constitute a “case” over which federal courts created pursuant to U.S. Const. Art. III are vested with jurisdiction. But the tangled web of precedents dealing with what constitutes a “Case” for purposes of U.S. Const. Art. III, Sec. 2 (see Spokeo v. Robbins, 136 S. Ct. 1540 (2016)(addressing the “injury in fact” element of the Court’s test for litigants’ “standing” as an element of whether a lawsuit presents a “Case or Controversy” within the meaning of U.S. Const. Art. III) show this proposition hasn’t, in practice, proven to be as self-evident many readers of the Constitutional text might expect.

Even though the meaning of “Cases” remains a matter of dispute, how could the government plausibly argue that administrative enforcement proceedings initiated by federal agencies are not “Controversies to which the United States” is a party (in the form of whatever arm of the federal government initiates the enforcement proceeding)? The Constitution’s text does not require that a case be a controversy, or vice-versa, nor does it exclude the possibility that in a given circumstance, a proceeding may be both a case and a controversy of the types to which the judicial power, vested (exclusively) in a supreme Court and such inferior Courts as Congress ordains and establishes, extends. Nor does its text speak in terms of (much less explicitly distinguish between) “public rights” and “private rights,” as do the many cases (several of which are referenced below) that have previously relied on such distinctions as justification for affirming the legitimacy of “legislative Courts” — i.e., courts created by federal statutes but not constituted so as to afford the judges presiding over those courts with the protections required by U.S. Const. Art. III. Indeed, “Controversies to which the United States shall be a Party” will, in most instances involve the sorts of “public rights” referenced in those cases,[7] and that ought to give pause to those who would argue such cases were correctly decided.

Just as certainly as the Court in Lucia was able to conclude that the ALJ who rendered the initial decision in that case should have been, but was not, properly appointed in accordance with the appointments clause, when the Supreme Court is presented with the opportunity to do so, it should readily conclude that no federal administrative agency that presently exists is actually an inferior court of the sort contemplated by Article III.

The Court also should have no difficulty finding that none of the commissioners, administrators, board members, etc., who head federal administrative bodies are “judges” whose tenure in office and compensation arrangements meet the requirements of Art. III, Sec. 1. For those reasons, when someone properly raises these points in a case that reaches the Court, the Court might now conclude that the administrative enforcement processes enshrined in numerous federal statutes represent efforts by the legislature to confer federal judicial power on persons not permitted by the Constitution to wield it.

The remaining precedential obstacles

Targets of administrative enforcement proceedings and their lawyers who seek to advance such arguments will have to contend with the fact that the U.S. Supreme Court (both very recently and in numerous cases that have become venerable with the passage of time) has rejected analogous arguments made in a variety of different contexts. For example:

  • Most recently, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (April 26, 2018), the Court upheld the validity of “inter parties review”, an administrative process by which previously issued patents may be reconsidered and cancelled. Justice Thomas, writing for the majority, pointed out that the Court “has never adopted a ‘looks like’ test to determine if an adjudication has improperly occurred outside of an Article III court.” Id. at 1378. That is as close as the majority opinion comes to addressing whether “inter parties review” is a form of case or controversy. But Justice Thomas explicitly emphasized the narrowness of the Court’s holding, pointing out that “we address only the precise constitutional challenges that Oil States raised here.” Id. at 1379. Justice Gorsuch’s dissent, in which he was joined by the Chief Justice, makes clear that there is no doubt in his mind that “inter parties review” is a form of case or controversy arising under the laws of the United States. Id. at 1380 (“We sometimes take it for granted today that independent judges will hear our cases and controversies.”). It is not too far of a reach to infer that he (and the Chief Justice) are inclined to adopt the type of “looks like” test to which Justice Thomas’ opinion refers.
  • In Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986), the Court upheld the authority of CFTC administrative law judges to resolve counterclaims based on state law in the course of CFTC reparation proceedings. The issue of whether the reparations process generally involved an improper exercise of federal judicial power was not squarely addressed by the Court, but the opinion does not suggest the Court held any concern about that issue.
  • In Thomas v. Union Carbide Agr. Products Co., 473 U.S. 568, 582-83 (1985), the Court noted that an “absolute construction of Article III is not possible,” discussed numerous instances in which the Court previously upheld federal statutory schemes vesting some form of judicial power in non-Article III courts, and ultimately affirmed the legitimacy of a process by which certain disputes were required to be resolved through an arbitration process imposed on the parties by statute (rather than being created by consensual agreements between the parties to the dispute).
  • In Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court discussed, with approval, the historical practice of creating “legislative or administrative courts,” even though it held unconstitutional a statute vesting bankruptcy judges (who do not have life tenure and compensation protection) with jurisdiction to adjudicate claims arising under state law in the context of bankruptcy cases.
  • In Palmore v. United States, 411 U.S. 389, 402 - 404 (1973), the opinion collects examples of cases in which the Court upheld the validity of federal statutes creating courts whose judges do not have either life tenure or the assurance that their compensation will not be reduced during their term of office. The same opinion upheld the validity of a federal statute creating courts for the District of Columbia whose judges have neither life tenure nor protection against reductions in compensation.
  • In Crowell v. Benson, 285 U.S. 22 (1932) the Court upheld the validity of a statute granting fact finding authority to non-Article III judges in certain compensation cases involving admiralty jurisdiction.

The roots of these decisions can be found in American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511 (1828). See Ex Parte Bakelite Corporation, 279 U.S. 438 (1929), citing American Insurance as “the first pronouncement” on the subject of non-Article III courts, and tracing at least parts of the history of Congressional actions creating such “legislative Courts” and the Supreme Court’s decisions upholding their legitimacy.

In American Insurance, the Court held that Congress could create (or authorize the creation of) “legislative Courts” to decide cases arising in territories that were not yet admitted to statehood, either as a matter of the “general right of sovereignty which exists in the government, or in virtue of that clause [U.S. Const. Art. IV, Section 3] which enables Congress to make all needful Rules and Regulations respecting the Territory [or other Property] belonging to the United States . . . .” without granting the judges of such “legislative Courts” the protections prescribed in Article III to ensure judicial independence. Since that decision, Congress has created numerous other “legislative Courts.” Most such “legislative Courts” are not charged only with adjudicating cases or controversies arising in territories of the United States that are not part of any state admitted to the Union. As the majority opinion in Oil States illustrates, the Court has nonetheless rarely held the legislation creating such courts invalid.

Dealing with these precedents is where the Wayfair and Janus cases may come into play.

Breaking free from the status quo

Wayfair and Janus, among other things, suggest that getting constitutional questions resolved correctly is more important than avoiding disruption of expectations predicated on erroneously decided precedents. To dismantle the administrative state through judicial decisions, acceptance of that principle is critical.

Administrative bodies are a pervasive presence as arms of the federal government. Many of them are statutorily authorized to enforce the regulatory scheme they administer through administrative enforcement proceedings structured much like the proceedings that occurred in Lucia. There is a very long history of both Congress and the Court declining to regard the vesting clause of Article III as meaning what its plain text should be understood to mean (see Note, A Literal Interpretation of Article III Ignores 150 Years of Article I Court History: Marathon Oil Pipeline Co. v. Northern Pipeline Construction Co., 19 New England L. Rev. 207 (1983)). Consequently, arguments like those made by Chief Justice Roberts in his Wayfair dissent will certainly be made in support of rejecting claims that the administrative enforcement process as presently practiced is unconstitutional.

But in Wayfair, the Court’s dissenting minority made and lost the argument that protecting settled expectations, even when predicated on precedents now regarded by a majority of justices to have been wrongly decided, is a sufficient basis not to disturb the status quo. A few days later, in Janus, the majority opinion’s approach to stare decisis was generally consistent with that of the majority opinion in Wayfair. This suggests that a new view of stare decisis, or at least a new view of the limits of stare decisis, is gaining acceptance at the Court. That view could impel members of the Court who accept (at least in the abstract) the correctness of the argument that, as currently structured, the federal administrative enforcement process runs afoul of U.S. Const. Art. III, Secs. 1 and 2, to conclude that the precedents listed above are not an insurmountable obstacle to giving force to that conclusion.

Building on success

If the Supreme Court holds, either in further proceedings arising from the SEC’s enforcement action in Lucia or in some future case that the construction of Article III’s vesting clause described above is correct, that ruling should lay the groundwork for a further step in the process of dismantling the administrative state. That next step is this: An appropriately positioned litigant should make the claim that just as vesting judicial power in administrative agencies and the administrative law judges they employ violates the vesting clause of Article III, vesting legislative – i.e., rule-making – power in administrative agencies violates the vesting clause (Section 1) of Article I of the U.S. Constitution, which provides that “All legislative Powers herein granted shall be vested in a Congress of the United States .” This section, just as importantly, does not, expressly or by implication, authorize any delegation of that legislative authority.[8]

Separation of powers principles demand these outcomes

The logic behind these vesting clause-based arguments isn’t complex. It rests in the separation of powers principle that most American schoolchildren were taught is one of the building blocks of the Constitution and a great source of the strength of our system of governance. The legislative branch is entrusted with lawmaking. The executive branch is responsible for executing the laws. The judicial branch is responsible for adjudicating whether laws have been broken. And as a general proposition, no branch of government is authorized to exercise powers vested in another. In this fashion, each branch of government is supposed to operate as a check upon, and to balance the exercise of powers by, the other branches. Or so most of us were taught in the social studies, civics, history and even political science classes we took in primary and secondary schools, and even as undergraduates. And so the Court has sometimes acknowledged. See, e.g., Northern Pipeline, 458 U.S. at 57 - 58:

Basic to the constitutional structure established by the Framers was their recognition that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” THE FEDERALIST NO. 47, p. 300 (H. Lodge ed. 1888) (J. Madison). To ensure against such tyranny, the Framers provided that the Federal Government would consist of three distinct Branches, each to exercise one of the governmental powers recognized by the Framers as inherently distinct. “The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976)(per curiam).

The reality of our federal government, at least since the so-called “Fourth Branch of Government” (more derisively known in some quarters as the “administrative state”) evolved, differs from the theories we learned about in school and the principles the Supreme Court has recognized and, at least, sometimes given force and effect. The federal government’s longstanding (and long-sanctioned) practice of vesting administrative bodies with the authority to promulgate regulations that establish substantive standards of conduct (in derogation of the vesting clause in U.S. Const. Art. I), to investigate and prosecute alleged violations of those standards of conduct and/or statutorily prescribed standards of conduct, and ultimately to adjudicate whether alleged violations of those standards occurred (in derogation of the vesting clause of U.S. Const. Art. III) fairly obviously runs afoul of most common conceptions of separation of powers principles.

Re-examination of Article I, Section 1 has already been invited

It is not unfair to ask why, if such basic principles as separation of powers are offended by the current construct of federal administrative agencies, these organs of our federal government have survived – and thrived – for such a long time. The Court’s precedents suggest how we got here. When legislative constructs like administrative agencies are challenged in court, the principle of stare decisis has generally led courts to first look not to the constitutional text that should guide the decision of whether particular legislation runs afoul of the Constitution, but rather to prior judicial decisions that ostensibly address the meaning of the relevant constitutional text. Typically, those decisions really address the last judicial pronouncements concerning the prior judicial pronouncement concerning the prior judicial pronouncement concerning … at some point, the actual text of the Constitution. Like a game of “telephone” whispered through a pair of tin cans connected by string, the meaning of our Constitution’s text — at least as described in briefs to the Court and in the Court’s opinions — has gotten more and more garbled, with each successive decision resting on the doctrine of stare decisis.

The opinions in Whitman v. American Trucking Assn’s, explain this process. Writing for the Court, the late Justice Scalia declared that U.S. Const. Art. I, Sec. 1’s text “permits no delegation of [legislative] powers.”[9] He went on to observe, however, that under the Court’s precedents, it is constitutionally permissible for Congress to authorize (or even require) administrative agencies to promulgate substantive rules as long as the administrative agency’s rulemaking authority is cabined by an “intelligible principle.” Justice Scalia did not characterize the quality of the “intelligible principle” standard, but his observation that the Court had only twice found it was not satisfied suggests it is a lenient standard. Id., 531 U.S. at 472 – 76. In his concurring opinion, Justice Thomas described what stare decisis had wrought: “The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the “intelligible principle” requirement as the only constitutional limit on congressional grants of power to administrative agencies . . . the Constitution does not speak of “intelligible principles.” Rather, it speaks in much simpler terms: ‘All legislative Powers herein granted shall be vested in a Congress.’” 531 U.S. at 487.

Justice Thomas expressed a willingness to “address whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers” in an appropriate case – one in which the parties properly raised the issue. Id. at 487. If some party properly raises the question in a case that comes before the Court, the seeming change in several Justices’ views of how stare decisis should affect the outcome suggests that a majority of the Court might now regard such a review as appropriate.

What would happen next?

A judicial ruling invalidating aspects of the federal administrative process on the constitutional grounds described above will likely function as a blunt instrument.

For example, a decision that the use of administrative proceedings to enforce the federal securities laws runs afoul of U.S. Const. Art. III, Secs. 1 and 2 might implicate not only the administrative law enforcement processes of other federal regulatory agencies, such as the NLRB, but also the administrative procedures by which decisions concerning social security disability benefits or applications for political asylum are initially reviewed.

A decision that regulations promulgated by, e.g., the SEC or the CFTC, are invalid because Congress cannot delegate its legislative authority may throw into doubt the validity of large volumes of federal regulations, from those promulgated by the Internal Revenue Service to those adopted by the Food and Drug Administration.

The far reaching consequences of a decision recognizing that when administrative agencies adjudicate charged violations of federal law they are improperly wielding the judicial power of the United States or a decision holding federal regulations invalid because the legislative power to promulgate them was improperly delegated to the adopting agency may make the Court reluctant to enforce the vesting clauses of the Constitution in the manners suggested above.

The role of Congress

Congress, of course, has the power to prevent whatever turmoil might ensue from judicial rulings on this key issue.

Here are two possible actions lawmakers could take:

  • They could enact legislation that eliminates administrative enforcement proceedings from the regulatory tool boxes of federal agencies, forcing such cases to be prosecuted in federal courts. If Congress believes forcing federal administrative agencies to enforce federal laws through actions filed in existing federal courts would place too great a burden on those courts, Congress could, if it chose to do so, entirely consistently with U.S. Const. Art. III, Secs. 1 and 2, create specialized courts to enforce particular types of regulation. Much like Delaware’s Chancery Court has been structured so as to deal efficiently and effectively with the many issues that arise in the course of corporate governance of companies organized under Delaware law, Congress could create specialized “inferior Courts” to handle cases arising under, e.g., federal securities laws, the Commodity Exchange Act, federal banking laws, federal laws regulating competition, and federal laws regulating food and drug safety. The principal constitutional constraints on the structure of such courts would be that their judges would — like judges appointed to federal district and appellate courts, and the Supreme Court — receive lifetime appointments and their compensation would not be subject to reduction.
  • They could amend current laws that delegate its authority to establish substantive standards of conduct to federal administrative bodies to eliminate administrative rulemaking. Regulatory agencies properly established as arms of the executive branch could still apply their presumed expertise to formulate such standards and then recommend to Congress that it enact legislation embodying those standards. Federal administrative agencies routinely propose legislation to Congress today. Were they stripped of the rulemaking authority Congress has improperly delegated to them in the past, they could continue to recommend legislation in the future, but likely would do so more frequently (and perhaps more transparently than is sometimes the case at present). As to existing regulations that would suddenly become unenforceable if and when Congress (or the Supreme Court) gives force to what was explicitly acknowledged in American Trucking (that U.S. Const. Art. I, Sec. 1’s text “permits no delegation of [legislative] powers”), Congress could, e.g., enact a stop-gap measure adopting all existing regulations as statutes subject to sunset provisions which would cause the regulations to expire at some specific point, forcing Congress to review and either re-enact, replace or allow to become a nullity each such regulation.

These sorts of legislative fixes may not be simple to devise, much less palatable to enact. But a relatively orderly legislative fix is probably much preferable to a Court-ordered one.

Conclusion

If the federal administrative state is dismantled, there undoubtedly will be costs, risks, and unforeseen and far-reaching consequences. But the decisions handed down as the Court brought its October 2017 term to a close suggest that timely and properly lodged constitutional challenges to administrative law enforcement processes as now practiced by the federal government and to administrative regulations promulgated by the federal government may have traction that could not have been imagined by most lawyers before June 21, 2018.

As members of the bar, we are required to zealously represent our clients’ interests. If our clients confront either charges that they have violated federal regulations or charges being pursued in federal administrative enforcement proceedings, that same ethical obligation should compel us to seriously consider mounting a challenge to federal administrative lawmaking and enforcement.