Poor reader, you unfortunately know that as an Atlanta-based criminal defense lawyer, I also like to ponder various existential issues, such as what does it mean to “know” a fact in a criminal case, and similar musings. Today, the United States Supreme Court issued a ruling on the existential question of what it takes to be a “judge”, at least in the context of a proceeding in front of the Securities and Exchange Commission (the “SEC”). The case is Lucia v. SEC.
Our beloved U.S. Constitution has something called the “appointments clause.” Go to Section 2 from Article II, look at the second clause if you are that interested. Basically, it says that anyone who is an “officer” of the U.S. must be appointed to his or her position by either the President, by the “Courts of Law”, or by the “Heads of Departments.” So far so good, a reasonable rule designed to make sure that high-ranking officials who get to make important government decisions are given their job by someone who has to answer to the People, or Congress.
Many federal agencies have gazillions of rules, and love to go after people and companies who supposedly violate those rules, regulations, or even a statute actually enacted by our elected representatives in Congress. Again, a good idea, go after law-breakers. However, more and more federal agencies now have set up their own miniature court systems for deciding if a person or company violated the rules. Again, not a bad idea completely, for these mini-courts are usually less formal (and less expensive) than taking a case to “real” federal court. However, the SEC took this process to a whole new level, and got spanked today by the Supreme Court.