It’s been looking for a while like the Republicans are preparing for a possible Democratic shockwave in the November elections by doing all they can to consolidate the gains they’ve made for themselves and for their donor class during their period of controlling the entire government. ( The president* is cooperating in this effort because he knows nothing about anything, and because, winning!) The unseemly haste with which they’re trying to lard up the federal judiciary with embryonic Scalias is the most obvious example. But, as with all things these days, it’s best to keep your eye on the sparrow as well.
On June 21, in a case called Lucia v. SEC, and by a resounding 7-2 margin, the Supreme Court ruled that administrative law judges (ALJs)—who preside over quasi-legal proceedings within the various executive agencies—are what are called “inferior officers” of the United States and, as such, can be appointed only by the president or by the head of the agency in question. (The case challenged the bona fides of an ALJ who worked for the Securities and Exchange Commission and who had been appointed, as was customary at the time, from off a master list maintained by the Office of Personnel Management.) These people are more important than they appear to be.
Administrative law judges preside over hearings within the agencies. These hearings adjudicate disputes over claims and benefits, as well as cases involving actions taken by the agencies. In the case of the SEC, for example, the agency could choose to take action to enforce financial regulations through the administrative procedures rather than going to court. Now, thanks to the Supreme Court, hundreds of administrative actions likely are now open to review. To repeat, because of the Lucia decision, administrative law judges now can be appointed only by the president or the head of the agency. You can see where this is headed, right?
Once again, what might have been merely a massive—if temporary—bureaucratic inconvenience caused by a fairly decisive Supreme Court ruling looks like something far more ominous due to the nature of this president* and his administration*, and of the behavior of a congressional majority that’s getting just enough of what it wants from him to remain as supine as it needs to be.
After all, this administration thought it was a good idea for Scott Pruitt to head the EPA. It still thinks it’s a good idea to have Mick Mulvaney running the Consumer Finance Protection Bureau. Its hiring practices are, ahem, uniquely suited both to looting the government for profit and to destroying the ability of regulatory agencies to do their jobs. One, of course, implies the other. This is not normal, as somebody once said.