The U.S. Supreme Court wrapped up the sitting portion of the 2017-2018 term on June 28, 2018. The nine lifetime Justices left 59 signed merit opinions and a stunned public in their wake.
The June opinion releases overshadowed the term. In rapid fire decimation of liberal aspirations, the Court announced a slew of controversial, conservative opinions. Swing vote Justice Anthony Kennedy swung right and then privately announced his retirement, handing President Trump a second appointment to the Supreme Court.
Everyone should read at least one opinion from each term. But which one?
Here are my choices for the runners-up from this term:
1. Murphy v. NCAA (7-2) invoked the 10th Amendment to invalidate an act of Congress prohibiting sports gaming. The Justices schooled federal judges on the bounds of the Supremacy Clause.
2. Trump v. Hawaii (5-4) condoned the maddening “Muslim” travel ban. The talking heads at CNN should read this opinion with yellow highlighter in trembling hand.
3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (7-2), though sensationalized, has two limiting attributes. The case dealt with Colorado’s anti-discrimination law. Fewer than half the states have such laws and more than half have laws protecting religious freedom. Also, Justice Kennedy sidestepped the real question by wryly holding that the sanctimonious government body charged with fighting discrimination evinced religious hostility and thereby violated the Constitution’s guarantee of freedom to exercise religion.
4. Janus v. American Federation of State, County, and Municipal Employees, Council 31 (5-4) dealt a calamitous blow to unions which can no longer extract fees from non-consenting employees. Estimates of the inevitable decrease in union budgets vary widely. Notably, the majority overturned a 1977 Supreme Court decision.
The one opinion to read from the term
My choice for the one Supreme Court opinion everyone should read is ….. Lucia v. Securities and Exchange Commission.
Really? A case about securities and fraud?
Hardly. This humdinger sports long Constitutional legs. You will appreciate the brevity – the majority opinion runs a mere 13 pages; the political controversy – the Justice Department reversed course; the author – ostensibly liberal Justice Kagan pens a conservative opinion; the dissent – Justices Ginsburg and Sotomayor diss their usually ideologically aligned sister Justice; and the crisis – the state of the Administrative State is at issue.
Factually, the case is simple. Raymond Lucia hawked a retirement plan grandiosely entitled “Buckets of Money.” Disdainful of the slide presentations, the SEC charged the alleged hustler with securities fraud. Lucia got his nine days in court before an SEC Administrative Law Judge (ALJ) appointed to office by the staff of the Commission. The ALJ conducted hearings, found violations, and issued civil sanctions.
On appeal to the Commission, Lucia’s attorneys went for the jugular – arguing the judge had not been properly appointed to office pursuant to the Appointments Clause of the U.S. Constitution. The Commission – hardly a disinterested party – found the argument inefficacious, as did the D.C. Circuit.
The Appointments Clause
The Appointments Clause provides the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties …; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Supreme Court ruling
Justice Elena Kagan, a former presidentially appointed officer in the Justice Department, authored the 7-2 majority opinion. She notes “the sole question here is whether the … ALJs are ‘Officers of the United States’ or simply employees.” If the ALJs are officers, rather than “lesser functionaries,” then they can only be appointed by “the President, a court of law, or a head of a department.”
Kagan cites distinguishing factors – tenure, duration, significant authority and discretion – then quickly concludes the ALJs are “officers.” Since the ALJ hearing Mr. Lucia’s case was not constitutionally appointed, she vacates the SEC ruling against Lucia.
As with last year’s recommended opinion, one might ponder the reason for the foofaraw. The inkling of what is at stake spills from the footnotes, concurring opinions and dissents. Think Swamp, the Administrative State, and Executive power.
The first hint comes on page 4 where we learn the Justice Department switched horses in midstream. The Obama Justice Department supported the SEC’s non-officer position in its Lucia briefings. Not so the Trump Justice Department.
At footnote 1, the plot thickens. The Court declines the Trump Administration’s request to consider the constitutionality of statutory restrictions on removal of officers.
At footnote 4, Kagan participates in an on-the-record spat with Sotomayor about whether “final decision making authority is a sin qua non of officer status.” Kagan wins the argument, and the population of “Officers” grows (and with it, the application of the Appointments Clause).
Concurring Justice Thomas, joined by Justice Gorsuch, would have gone further and held that any federal employee with “responsibility for an ongoing statutory duty” is an officer.
Justice Breyer agrees with the result but not the reasoning. He confronts the room’s elephant by stating he would not “answer the constitutional question that the majority answers without knowing the answer to a different, embedded question” about removal from office. He reproaches the other six Justices for “unraveling, step-by-step, the foundations of the … administrative adjudication system and, perhaps, of the merit-based civil-service system.”
The takeaway and wrap-up
Lucia is, as Breyer describes it, a step in the process of unraveling the administrative state. The next step – reserved for a later case and perhaps a later opinion – will deal with removal.
Regardless of party affiliation, one wonders how a U.S. President can run the Executive Branch if “Officers” are not subject to removal. Consider Congress’ attempt to shield the CFTB’s executive director from a successor President. Or whether Robert Mueller, appointed under a regulation (rather than law) and possessing all the powers of a U.S. Attorney without Senate confirmation, is an Officer. Or, whether a Democratic Party successor to President Trump should be long-saddled with officers appointed during the Trump years.
The answer may lie in the salient opening line of Article II of the U.S. Constitution: “The executive Power shall be vested in a President of the United States of America.”
And if you’re wondering about Mr. Lucia, the SEC can try again.
Ben Williams the author, is a Mississippi attorney. Email Ben at MBWJ@aol.com. Ford Williams the artist, is a rising junior at the Savannah College of Art & Design (SCAD).
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