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CHICAGO, ILLINOIS – MARCH 21, 2019 –Professor Steven Gow Calabresi, the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law and an expert on constitutional law and on the Appointments Clause in particular, has sent a letter to President Donald J. Trump urging him to exercise his authority pursuant to Article II of the U.S. Constitution to require the Commissioners of the U.S. International Trade Commission (ITC) to explain whether or not the ITC violated the Appointments Clause of the Constitution.
In an earlier letter to the ITC dated February 6, 2019, Professor Calabresi explained why it appears that the Commissioners of the ITC unconstitutionally appointed the administrative law judge (ALJ) who issued an initial determination and recommended determination in a patent-infringement case worth an estimated $7 billion between Qualcomm and Apple entitled Certain Mobile Electronic Devices and Radio Frequency and Processing Components Thereof, Investigation No. 337-TA-1065 (the 1065 Investigation).
The ALJ in question retired from the ITC on or around September 4, 2018 and returned to the ITC on or around September 17, 2018 before he issued an initial determination and recommended determination in the 1065 Investigation. Yet, as Professor Calabresi explained in his letter of February 6 to the ITC, the ITC has not released any public notice confirming that it lawfully reappointed the retired ALJ, as required by federal statute and the Constitution.
“The Supreme Court made it crystal clear in Justice Elena Kagan’s majority decision of June 21, 2018 in Lucia v. SEC that an independent agency cannot remand a case that is tainted by a violation of the Appointments Clause back to the same ALJ who previously, and unconstitutionally, presided over the case,” said Professor Calabresi. “Because the ALJ who presided over the 1065 Investigation appears to have acted unconstitutionally in issuing an initial determination and recommended determination, the ITC is required to vacate those determinations and remand the case to a different, constitutionally appointed ALJ to cure that constitutional error. Alternatively, consistent with the Supreme Court’s holding in Lucia, the ITC commissioners themselves, sitting en banc, may preside over a new full hearing in the 1065 Investigation and thereafter issue new findings.”
In his letter to President Trump, Professor Calabresi explains that, “[p]ursuant to Article II, section 2, clause 2 of the Constitution,” the President “‘may require the Opinion, in writing, of the principal Officer in each of the executive departments, upon any Subject relating to the Duties of their respective Offices.’” In particular, Professor Calabresi explains, President Trump may send a letter to David S. Johanson, Chairman of the ITC, “requiring that [Chairman Johanson] promptly give [the President] his written opinion whether the ITC Commissioners violated the Appointments Clause with respect to the ‘return’ of [the retired ALJ] as a supposed ALJ of the ITC.”
Professor Calabresi advises President Trump that “[t]he ITC’s apparent failure to reappoint the retired [ALJ] an ALJ in a manner that conforms with the Appointments Clause is particularly alarming because the ITC appears to have disregarded (1) the Supreme Court’s decision on June 21, 2018 in Lucia v. SEC holding that ALJs are inferior officers who must be appointed pursuant to the Appointments Clause, (2) [President Trump’s] executive order of July 10, 2018 reiterating the Supreme Court’s holding in Lucia, and (3) the ITC’s own public notice of September 4, 2018 acknowledging its duty to appoint its ALJs in a manner compliant with Lucia.”
“Several concerns prompted me to write to President Trump,” said Professor Calabresi. “First, to my knowledge, the Commissioners of the ITC have not individually or collectively responded to the letter that I filed publicly with the ITC six weeks ago, on February 6, 2019, notifying the ITC that its Commissioners appear to have violated the Appointments Clause in or around September 2018. Second, to my knowledge, the ITC has failed to satisfy my request, submitted pursuant to the Freedom of Information Act nearly six weeks ago, on February 8, 2019, to disclose records confirming whether or not the ITC complied with the Appointments Clause. Surely, the ITC controls and can readily access records that would confirm or deny whether its Commissioners held a vote to reappoint the ALJ in question, as the Appointments Clause requires. It should not take this long to locate and disclose such records pursuant to the Freedom of Information Act. The ITC’s failure to respond promptly supports rather than dispels the inference that the agency violated the Appointments Clause.”
The full Commission is reviewing the ALJ’s recommended determination and is expected to issue a final opinion on March 26, 2019.