This post draws on joint work with M. Todd Henderson, entitled Congress’s Commissioners and published in the current issue of the Yale Journal on Regulation. If recent history is any guide, senators considering executive-branch nominations in the coming months likely will see some familiar faces at witness tables. Currently, nearly half of all commissioners and board members on eleven […]

*This is the third post in a mini-symposium on Alexander Platt’s paper, Is Administrative Summary Judgment Unlawful? For earlier posts in the series, click here. When Philip Hamburger asked capaciously and provocatively Is Administrative Law Unlawful?, Adrian Vermeule famously and simply responded, “No.” Echoing Hamburger, Alex Platt asks a more limited question in his forthcoming […]

*This is the second post in a series on Alex’s new Article, Is Administrative Summary Judgment Unlawful? For earlier posts in the series, click here. My last post argued that the text, legislative history, and legal historical context of the Administrative Procedure Act (APA) demonstrate the statute prohibits enforcement agencies from using administrative summary judgment […]

*This is the first post in a series on Alex’s new Article, Is Administrative Summary Judgment Unlawful? For later posts in the series, click here. Thanks to Chris Walker, Elsa Dodds, and the Notice & Comment Blog for hosting this micro-symposium on my new Article, Is Administrative Summary Judgment Unlawful?.  In this introductory post, I outline the core legal […]

Motivated largely by the “Techlash” against the digital platform giants like Facebook, Amazon, Apple, and Google along with the Net Neutrality debate implicating Internet service providers (“ISPs”) like AT&T, Verizon, and Comcast, there is a growing concern that the nation’s antitrust laws and regulatory institutions are ill-suited for the Digital Age.  What is needed, some say, […]

On February 18, 2021, Tae D. Johnson, Acting Director of U.S. Immigration Customs Enforcement (ICE), issued interim guidance on civil immigration enforcement and removal priorities (ICE Priorities Memo). Building on a previous commentary on prosecutorial discretion in the Biden administration, this post shares key elements of the ICE Priorities Memo, and compares it to how […]

On March 1, 2021, the Supreme Court will hear argument in three cases arising from the Federal Circuit’s Arthrex decision. The main issue before the Court is whether the more than 250 administrative patent judges (APJs) who are employed by the Patent & Trademark Office (PTO) are inferior or principal officers under the Constitution. Riding […]

Part 4: The Consequences of Late Impeachment This is the fourth and final part of a series on the 1876 impeachment trial of former Secretary of War William Belknap. In each part, I have examined a different category of argument made at that trial on the question whether the Senate has constitutional jurisdiction to try […]

Part 3: Evidence from the Drafting of the Impeachment Clauses This is the third part of a four-part series on the 1876 impeachment trial of former Secretary of War William Belknap. In each part, I will examine a different category of argument made at that trial on the question whether the Senate has constitutional jurisdiction […]

Part 2: The History of the Word “Impeachment” This is the second part of a four-part series on the 1876 impeachment trial of former Secretary of War William Belknap. In each part, I will examine a different category of argument made at that trial on the question whether the Senate has constitutional jurisdiction to try and […]

I’ll start this post with a bold claim: The core models of analysis in administrative law are inflexible and entrenched, and the scope, quality, and materiality of administrative law scholarship has stagnated as a result.   Why (you might ask)? Because outdated beliefs about what constitutes objective legal analysis and intellectual rigor continue to mold research […]

Tease: to tantalize especially by arousing desire or curiosity often without intending to satisfy it Merriam-Webster Dictionary (3rd definition) The Constitution forbids Congress from delegating legislative authority to the Executive Branch, but the Court has not struck down a statute on non-delegation grounds since 1935 in Panama Refining Co. v. Ryan, and A.L.A. Schechter Poultry […]

Part 1: Constitutional Text Since the House of Representatives impeached President Trump for the second time on January 13th, a widespread debate has ensued over the constitutionality of the Senate trying a former president. In recent weeks, many legal scholars have offered arguments both for and against the Senate’s jurisdiction to try former President Trump. In a preliminary vote, the Senate tabled […]