Creating Mischief: The Tenth Circuit Declares the SEC’s Administrative Law Judges Unconstitutional in Bandimere V. Securities Exchange Commission

Since the passage of the APA, administrative agencies’ use of Administrative Law Judges (ALJs) to preside over hearings has exploded, and now far outpaces the number trials conducted before federal judges. The Securities and Exchange Commission (SEC) is one such agency that heavily utilizes ALJs to conduct their hearings. Recently, following an apparent higher percentage of SEC wins before their own ALJs as compared to before federal judges, a new constitutional challenge on the basis of the Appointments Clause has been brought before several circuits; that the SEC’s ALJs are inferior officers of the SEC, not employees, and therefore are required to be appointed pursuant to the requirements of the Appointments Clause. The support for this challenge comes from the Supreme Court’s decision in Freytag v. Commissioner, which laid out three indicia of inferior officer status. In 2016, both the D.C. Circuit and the Tenth Circuit had occasion to decide this issue, with the former ruling in favor of the SEC’s ALJs, and the latter against. The circuit split has left the status of the SEC’s ALJs in a state of flux, with more challenges certain to come, including challenges to other agencies’ ALJs. This Note argues that the Tenth Circuit’s decision in Bandimere v. SEC more faithfully applied the Supreme Court’s indicia of officer status, and properly declared the SEC’s ALJs inferior officers