Trump Administration Constitutional Move to 'Drain the Swamp'

Jones

Ambassador
Ambassador
FOTCM Member
I've been following some of the discussions in regards to the Australian Constitution here in Aus and this topic come up.

The Trump administration's new position on the constitutionality of the U.S. Securities and Exchange Commission's administrative law judges is more far- reaching and potentially consequential than is generally understood. On Nov. 29, the U.S. solicitor general, who speaks for the federal government before the U.S. Supreme Court, filed a brief urging the court to review the case of Raymond J. Lucia v. SEC. Lucia is seeking to overturn an SEC fine and professional bar based on the argument that the ALJ in his case was not properly appointed. In an about-face, the solicitor general now agrees with Lucia that the SEC's ALJs are "officers" subject to the appointments clause of the Constitution, not mere employees, as the SEC had argued.

What has received less attention is that the administration's brief urges the court to go beyond the requirements for appointing ALJs (an issue that has divided many federal judges and is ripe for Supreme Court review) and consider also the restrictions on removing them from office — an issue that was not passed on below and on which there is no judicial disagreement. Nevertheless, citing the Supreme Court's 2010 decision in Free Enterprise Fund v. Public Company Accounting Oversight Board, the solicitor general all but states that the traditional system of tenure protections for ALJs is unconstitutional — even though no court has adopted that view.

Were the Supreme Court to do so, it could undermine protections not just for ALJs at the SEC and other agencies, but also for senior civil servants in a range of federal agencies, who by design are insulated from political and other forms of reprisal. The administration's position is likely a product of the "unitary executive" theory popular among some conservative theorists, which holds that the president should have relatively unfettered control of executive branch agencies, and is skeptical of restrictions on his power to remove officials in them.
_The Trump Administration's Move Against SEC Judges. - Corporate/Commercial Law - United States

From what I can gather, this all means that instead of getting a slap on the wrist for breaches of Administrative Law as employees, these AJL's and other civil servants can now be dealt with under a different jurisdiction that deals with charges against individuals who breach the Constitutional rights of others. I'm still not entirely sure of the differences between jurisdictions though. Be interesting to see how this all unfolds.

I think that it means that employees won't be able to hide behind the excuse of 'I was just doing my job'.
 
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