The USDA’s Agricultural Marketing Service (AMS) has announced that the California Federal Milk Marketing Order rulemaking proceeding will be delayed pending the outcome of a related case before the United States Supreme Court.
In 2015, the AMS held a hearing regarding a proposal from three dairy cooperatives to put in place a federal milk marketing order in California. The hearing was presided over by an administrative law judge who was an employee of the USDA. However, in 2017, the Solicitor General of the United States submitted a brief to the US Supreme Court in which the government took the position that administrative law judges are “inferior officers” of the United States and not employees. If the Supreme Court upholds that position, then administrative law judges would need to be appointed under Article II of the United States Constitution.
The case is Lucia v. Securities and Exchange Commission, and a ruling will be issued by the Supreme Court no later than June 30, 2018.