Could This Supreme Court Case Affect Robert Mueller?

[WhiteTara]

https://www.yahoo.com/news/supreme-court-apos-apos-fire-140048522.html

Here’s the arcane part: Instead of appointing Administrative Law Judges, the SEC delegated that power to its chief administrative law judge. In Lucia’s case, as in others, the chief ALJ selected an ALJ whom the federal Office of Personnel Management had properly found to be qualified for that role. Lucia argued unsuccessfully to the U.S. Court of Appeals for the D.C. Circuit that this selection was unconstitutional. He asserted that, under Article II of the Constitution, the ALJ had to be considered an “Officer of the United States.” As such, she could properly be appointed only by the president or by the Securities and Exchange Commission. The chief ALJ could appoint another ALJ only if the appointed ALJ were a mere “employee,” not an “officer.” The Supreme Court agreed to take the question under review.

This appointments issue has no direct implications for Mueller. As the head of a department, Acting Attorney General Rod Rosenstein, who appointed the special counsel, is constitutionally qualified to make both officer and employee appointments. Yet the Court’s handling of the appointments question will have enormous implications for administrative justice in the United States. As pointed out in an amicus brief “for neither party” by administrative law scholars, Congress created the ALJ system in the 1940s to help with the multifarious oral evidentiary hearings that are common throughout the federal government. Most ALJs, 1,655 out of 1,926, provide hearings regarding claims before the Social Security Administration. The system was intended to respond to complaints that federal hearing officers were too biased in favor of the agencies they worked for. By giving administrative adjudicators a measure of independence, Congress—and the Securities and Exchange Commission—were trying to give private parties like Lucia more a fair shake when their cases came before the government.

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The deeper threat to the rule of law, however, comes not from the issue of appointments, but from another issue that the Court initially seemed to dodge—namely, whether administrative law judges must be dischargeable at will or whether, as is now the case, they may be fired only for “good cause.” And make no mistake, the ultimate target here is not just administrative law judges, but all federal administrators who are “officers of the United States,” including—perhaps especially—independent prosecutors like Mueller.

The Trump Administrator’s eagerness to pursue the removal issue could not be more palpable. First, the current solicitor general, Noel Francisco, reversed the position of the Obama Administration, which had defended the Securities and Exchange Commission, and put the government instead on Lucia’s side. Then, contrary to Lucia’s lawyers, who have explicitly argued that the removal question is not properly presented, Francisco urged the Court to address the removal question. When the Court declined to include the removal issue in its grant of certiorari, Francisco went ahead and briefed it anyway, urging that ALJ’s must be dischargeable for any “failure to perform adequately or to follow agency policies, procedures, or instructions.” The Supreme Court has now granted him permission to share in the oral argument on behalf of Lucia, even though among the reasons Francisco gave for sharing the podium is precisely that “only the government has addressed in its brief the merits of the removal question.” In a normal case, that would be a very strong reason for the Court not to take up the issue.

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The alternative to a “unitary-executive” presidency is a “checks-and-balances” presidency, in which it is most often up to Congress and to the departments of government that Congress created whether and how to balance the values of independent judgment and politically insulated accountability to the rule of law against the value of political accountability to the president. A case like Lucia, which implicates the evenhandedness of administrative judges, presents the least appealing context for expanding the president’s capacity to make political appointments. But equally, America’s Trumpian moment marks the least enticing time to certify a president’s supposed constitutional authority to fire officials at will. Don’t let the technical details fool you. A lot is at stake in Lucia.