Maxwell Weiss ·
84 Geo. Wash. L. Rev. 1407 ·
There has recently been a series of challenges to the U.S. Securities and Exchange Commission’s (“SEC”) use of Administrative Law Judges (“ALJs”) to preside over enforcement actions. In one of those challenges, Hill v. SEC, Judge Leigh Martin May of the Northern District of Georgia ruled that SEC ALJs are inferior officers of the United States, and therefore their appointments must comply with the Appointments Clause of the U.S. Constitution, which they currently do not. The Eleventh Circuit reversed, ruling that the district court lacked subject matter jurisdiction to adjudicate the challenge. This Essay compares the district and appellate decisions, ultimately agreeing with Judge May’s conclusions. The court of appeals failed to recognize that precluding collateral challenges to ALJ appointments renders most plaintiffs unable to ever challenge the appointments process, as their challenge will be moot by the time direct judicial review is available. However, some plaintiffs’ cases may be saved by the “capable of repetition yet evading review” exception. If that occurs, and a plaintiff is heard on the merits of an Appointments Clause challenge, the entire administrative adjudicative system could come crashing down. Therefore, Congress should amend the ALJ appointments process to cure the constitutional defect.
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