“Do you know Amul Thapar?” That’s a common question this week, as official Washington buzzes about the five (or so) Supreme Court short-listers identified in the wake of Justice Kennedy’s retirement. But it wasn’t common in 2007 when my father-in-law asked about a recent visitor to the Toyota plant where he worked in Georgetown. (No, […]
In a narrow decision, the Supreme Court held in Lucia v. SEC that the Securities and Exchange Commission’s administrative law judges are “officers of the United States.” Because they are officers, the Constitution’s Appointments Clause required the Commissioners themselves, not others within the agency, to appoint the ALJs. Upon resolving the appointments question, Lucia teed […]
In our last post, we discussed Judge Kethledge’s longstanding commitment to enforcing the separation of powers. In this post, we will explain how that commitment has shaped his approach to Chevron, which requires judicial deference to agency interpretations of ambiguous statutes. The Constitutional Case Against Chevron Judge Kethledge’s views on Chevron originate with the text […]
The Supreme Court tossed a proverbial squib into the administrative law world this morning, and the takes, hot and otherwise, are sparking everywhere. It handed down three decisions with implications for administrative law: Lucia v. SEC, Pereira v. Sessions, and Wisconsin Central Ltd. v. United States. Lucia, which already had its own symposium on this […]
In recent years, several posts on this blog have analyzed how individual judges on President Trump’s Supreme Court shortlist approach questions of administrative law. (See here and here.) To our knowledge, however, no one has written about one of the leading contenders—Judge Raymond Kethledge. This two-part series attempts to fill that gap. The first post […]
In my April 9 guest blogpost, “Auer Deference with a Foreign Twist,” I discussed the issues before the Court in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. The case involved a federal class action antitrust and price-fixing jury trial verdict for $147 million against two Chinese vitamin C manufacturers that was overturned […]
Applying deference under Bowles v. Seminole Rock, 325 U.S. 410 (1945), courts have deferred to agency interpretations of agency rules for decades. But a recent concern that the doctrine permits agencies to combine the powers of lawmaking and law interpretation has prompted Congress and the courts to consider reform. In a new Essay, forthcoming in […]
San Francisco City Attorney Dennis Herrera filed a lawsuit[i] on April 5, 2018, challenging U.S. Attorney General Jeff Sessions’s repeal of six Department of Justice (DOJ) civil rights guidance documents. The lawsuit argues that Sessions rescinded these civil rights protections for marginalized communities without meaningful explanation, in violation of the Administrative Procedure Act (APA). *** […]
The Supreme Court appears to be poised to uphold the so-called Travel Ban at issue in Trump v. Hawaii. At the oral argument, some of the justices seemed concerned about the Court second-guessing an order that came from the President himself and that concerned national security. Neither of those factors, however, should hinder the Court […]
Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such […]
Neither Justice Breyer nor Justice Gorsuch are fond of the “mandatory,” two-step approach to Chevron. Shortly after the D.C. Circuit molded the two-step standard from Justice Stevens’s opinion, then-Judge Breyer argued that a mandatory version of Chevron would result in a “greater abdication of responsibility to interpret the law than seems wise.” Since joining the […]
On Monday, the Supreme Court will hear oral arguments in the case Lucia v. SEC. The question presented is whether administrative law judges of the Security Exchange Commission should be considered “Officers of the United States” subject to the Appointments Clause of the U.S. Constitution. In a previous post, I suggested that the Court should […]
As one who has studied the role of impartial institutions for the purpose of resolving electoral disputes—and has advocated the creation of special nonpartisan tribunals in high-profile cases (like Minnesota’s Coleman-Franken recount in 2008)—I wonder whether the appointment of a special master, as Judge Kimba Wood is reportedly considering, is appropriate for the review of the material seized from […]
How to explain Lucia v. SEC? The question presented—whether the Constitution requires the Securities and Exchange Commission itself to appoint its ALJs, rather than delegating that appointment authority to its Human Resources Department—is as a practical matter obsolete, because the agency has now adopted the view, rightly or wrongly, that the Commissioners themselves must do […]
We begin with first principles: the Constitution created three branches of government. The legislative and executive branches are periodically checked by the electorate. To make that electoral check work for the executive branch, however, the one official actually accountable to voters, the president, is supposed to be able to supervise it. As James Madison noted […]