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[**Thank you for your willingness to take a look at this very early draft. My intention in this project is to build on some of the themes of “officer” accountability that I touched on in an earlier historical study of the Appointments Clause. By the end of this project, I intend to have mined all of the state ratification debate records. As of this point in the project, I have canvassed only the 600+ pages on the Virginia Ratifying Convention in volume 3 of Elliot’s Records. Subsequent drafts of this project will incorporate officer accountability themes from the remaining 8 state records in volumes 2 and 4 of Elliot’s Records. Thank you very much for your feedback and suggestions for further developing the themes in this early draft.] The Ratifiers’ Theory of Officer Accountability Jennifer Mascott June 8, 2018 Early Draft: Please do not cite or circulate. Introduction This past Term the Supreme Court considered investment advisor Raymond Lucia’s claim that an administrative law judge (ALJ) in the Securities and Exchange Commission (SEC) improperly exercised government authority in his case.1 The stakes were high. The SEC ALJ had imposed a $300,000 fine on Mr. Lucia and barred him from future practice in his securities-related profession. Mr. Lucia contended that the ALJ lacked the constitutional authority to do so because he had not been appointed as an “Officer of the United States” pursuant to the Appointments Clause in Article II of the U.S. Constitution. Under the Appointments Clause, any federal official falling within the category “Officers of the United States” must be appointed by the President alone, the President with Senate consent, the head of an Executive Branch department, or a court of law.2 The ALJ originally presiding over Lucia’s case had been hired by staff. In the late twentieth century, the Supreme Court suggested that any federal official exercising “significant authority” constitutes an Article II “officer.” The Court has also indicated that several factors demonstrating an official has “significant 1 See Lucia v. SEC (S.Ct. No. 17-130). 2 U.S. CONST. art. II, § 2, cl. 2. 1 authority” include the exercise of discretion in handling significant tasks such as taking depositions or ruling on evidence in agency adjudicative proceedings. The Supreme Court has also explained that an official’s ability to take final governmental action may be indicative of “officer” status.3 But significant evidence suggests that as a historical matter, neither discretion nor final-decisionmaking authority were necessary preconditions for “officer” status as officials as low level as ministerial record-keeping clerks were “officers.”4 The weight of the Founding-era evidence suggests that any federal official carrying out an ongoing statutory duty was an “officer.”5 Both the historical evidence and modern Supreme Court jurisprudence indicate that Appointments Clause restrictions on the selection of officers are intended to ensure electoral accountability in the exercise of power. The idea was that if the selection of officers was restricted to the President or an executive department head, the President or department head would have to take care to pick qualified officers because she would bear the blame if those officials poorly performed.6 But the specter of applying the Appointments Clause requirements of selection by politically accountable officials to agency adjudicators evaluating liberty and property rights has brought two, at least superficially conflicting, governmental accountability ideals to a head. On one hand, if agency adjudicators exercise power within the Executive Branch, perhaps they should be subject to the Article II chain of accountability7 requirements that protect the electorate from abuse of power through their ability to vote out of office the President who directed, supervised, and appointed the problematic officers. On the other hand, if agency adjudicators have influence to strip liberty and property rights, perhaps they should 3 Lower courts disagree on whether the Supreme Court has established final decision-making authority as a necessary, or merely a sufficient, condition for Article II “officer” status. See, e.g., Bandimere v. SEC, 844 F.3d 1168 (10th Cir. 2016); Raymond J. Lucia Cos. v. SEC, 832 F.3d 277 (D.C. Cir. 2016). 4 Jennifer L. Mascott, Who are “Officers of the United States”?, 70 STAN. L. REV. 443, 511-12 (2018). 5 Id. at 450. 6 See, e.g., id. at 447, 558-60 (discussing accountability). 7 See Dina Mishra, An Executive Power Non-delegation Doctrine for the Private Administration of Federal Law, 68 VAND. L. REV. 1509 (2015) (employing this phrase). 2 be more independent from politically elected officials, with tenure and selection protections more like those that insulate Article III judges from the political winds.8 Perhaps needless to say, advocates on behalf of Mr. Lucia tended to highlight the applicability of electoral accountability protections to ALJs via the Article II requirement of proper appointment9—and, perhaps, stronger recognition of inherent executive power to impact officer removal.10 Those who supported the SEC’s initial process for staff-level selection of ALJs, in contrast, highlighted the need for independence in determinations impacting individual rights.11 Both the ideals of electoral accountability as well as the need for independence in the protection of individual rights are longstanding constitutional values. Which governs the constitutional questions at play in Lucia? Should both values impact structural protections related to agency adjudicators? Can these values work together? What is their provenance? Previously I published a study on the meaning of the phrase “Officers of the United States” at the time that the Appointments Clause was ratified as part of the Constitution.12 The study examined thousands of late eighteenth century uses of the terms “office(s),” “officer(s),” and “Officers of the United States” and examined the appointments practices of the First Congress. But one set of constitutionally significant Founding-era documents that the study mined just in part was the record of the State ratification debates—looking only at the debates’ contextual references to the phrase “Officers of the United States” rather than the debates’ discussion of governmental office and officers in general. 8 One third approach, not advocated by the litigants in Lucia, would be for the Court to confirm that Appointments Clause requirements apply to executive branch officials like ALJs who exercise significant authority but insist that cases involving vested property and liberty rights be adjudicated directly in Article III courts rather than in an administrative forum. See, e.g., Mascott, Constitutionally Conforming Agency Adjudication, 2 LOY. U. CHI. J. REG. COMPLIANCE 22 (2017). ALJs, appointed via the constitutional mechanisms of Article II, could continue to adjudicate matters involving the distribution of governmental benefits, licensing, and disputes involving governmental revenue collection—all disputes that historically were considered suitable for executive adjudication because they did not involve divesting individuals of liberty and property rights. See, e.g., Lawson; Nelson; McConnell; and Chapman. 9 See, e.g., Petitioner’s brief. 10 See the briefs filed by the Government and amicus CATO. 11 See, e.g., the briefs filed by the Court-appointed amicus, ALJ organizations, and Administrative Law professors. 12 See Mascott, supra note 4. 3 Elliot’s Records of the Ratification Debates13 provide a fascinating account of the debate among the individuals that state legislatures selected to deliberate, and ultimately vote on, whether to ratify the new charter of government proposed by the Constitutional Convention in 1787. The close to three volumes of state debate records contain more than 800 references to the terms office(s) and officer(s). Nonetheless the debates spend little time discussing specifically who qualifies as an officer or even how the Appointments Clause itself works in operation. Rather, many of the debates’ references to office and officer refer to elected federal officials rather than subordinate executive officers. Debate discussions focus heavily on mechanisms within the constitutional structure for keeping federal elected officials accountable for working in the best interest of the people and preserving liberty. The heavy focus on accountability for the elected Representatives, Senators, and President as agents of the people is due in large measure to the ratifiers’ understanding that the direct (or indirect) election of officials by the people was the lawful source of those officials’ legitimacy and power—not the expertise or independence of entities that Congress would eventually create to carry out federal policy. The state ratifying conventions’ votes in favor of the Constitution gave the charter its place as governing law. This paper will canvas and explore the ratifiers’ numerous theories for how to maintain officer accountability in this new governmental system that prized individual liberty and property and continued self- governance within the States.14 This analysis is intended to be descriptive, unearthing the ratifiers’ range of views on governmental accountability mechanisms and briefly describing several ways in which contemporary administrative theories of governance may diverge from them. The paper does not intend to normatively debate how closely current administrative practice should hew to the original functionalist goals and purposes of the Constitution as understood by the ratifiers.15 13 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution (Jonathan Elliot ed., Washington, Jonathan Elliot 2d ed. 1836) [hereinafter “Volume 3”]. 14 ***As of this early draft, I have examined only the 600 pages of Virginia debates in volume 3 of Elliot’s Records. This draft incorporates only small portions of discussion from the other eight States’ debate summaries, which span more than 1000 pages throughout volumes 2 and 4 of the Records. Subsequent drafts will incorporate analysis from the complete collection of state ratification debates. 15 Cf., e.g., Gillian E.

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