The U.S. Supreme Court’s handling of key cases challenging the constitutional status of SEC administrative law judges may hinge on the possibility that Justice Neil Gorsuch will recuse in one of the cases.
The two cases—Lucia v. SEC and SEC v. Bandimere—have created a sharp circuit split, ultimately making one or both of them likely candidates for Supreme Court review. In Bandimere, the U.S. Court of Appeals for the Tenth Circuit ruled that the judges are “inferior officers” under the Constitution and therefore must be hired by the president, a court or a department head—not by internal staff of the U.S. Securities and Exchange Commission, as they are now. But in Lucia, the U.S. Court of Appeals for the D.C. Circuit ruled that administrative law judges are SEC employees, not officers, because their decisions are not final.
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