An order by Administrative Law Judge Elliot denying the Div. of Enforcement’s request for an extension looks good at first, but take note of this sentence:
“For reasons that will be explained in a future order, I do not find any merit in Respondents’ ratification arguments as addressed to me.”
This suggests that ALJ Elliot disagrees with Biel’s ratification arguments ‘as addressed to him.’ IMO, he may have just denied the extension because he doesn’t think there’s any reason for the SEC to reply to those arguments. In the future order he may even say that he’s in no place to rule on the whole ratification issue (I assume this is referring to that “magic wand” solution that the solicitor general tried in the appointments clause appeal where the head of the SEC retroactively fixed the appointment of all the ALJs) until the Supreme Court decides the issue.
My personal opinion is that the Sup. Court will not rule in favor of the government, at least to the extent that any current fix will not apply retroactively to past decisions. Magic wand solutions aside there is a whole “Star Chamber” aspect to SEC enforcement actions where they bring cases against companies with their enforcers and then those cases are decided by their own SEC ALJs - not independent full federal justices who are part of the federal court system.
It would be a little absurd to expect the ALJ here to come out and say “You know what, you’re right, my career at the SEC stands in conflict with the appointments clause, forget about this and every other past decision I’ve made in other enforcement actions, I’ll just step down and reevaluate my life.”
He’s never going to say that, and even ruling on this issue is like ruling on a request to recuse yourself. Hey, you know what, I like my job, so I’m just going to continue doing what I’m doing motion denied.
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