Just a month ago, in a harbinger of things to come, the conservative side lost in the D.C. Circuit Court of Appeals, and almost no one seemed to notice. It was one of those cases in which the expansive powers of the administrative state come into possible conflict with the moral logic of the separation of powers. In Lucia v. SEC, the argument centered on the question of whether administrative judges are wielding the power to settle cases decisively and issue orders, even though they are not appointed and confirmed as judges according to the form prescribed under Article III of the Constitution. The complainants lost with the unanimous judgment of a panel of three judges—two appointees of Obama and one of Clinton.
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