Notice & Comment

Author: Jennifer Mascott

Notice & Comment

DOJ: Executive Supervision or Independence? Virtual panel discussion on June 17 @ noon ET with former senior officials from four administrations

On June 17, a powerhouse lineup of former White House and DOJ officials will discuss one of the most pressing issues in presidential administration of late – is the nation’s chief law enforcement, and law interpretation, agency run most soundly if it is subordinate to the Chief Executive or independent?  The Federalism & Separation of […]

Notice & Comment

The Procedural Morality of Administrative Law—To the End of the Common Good?, by Jennifer Mascott

*This is the sixth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. Adrian Vermeule and Cass Sunstein’s recent feat in Law & Leviathan is thought-provoking and builds on their past prolific contributions to administrative law.  The […]

Notice & Comment

The Constitutionality of the CFPB Again Before the Courts

Amidst the flurry of administrative–law–related opinions that the Supreme Court handed down at the end of last week, an intriguing separation-of-powers-related opinion from the Southern District of New York (SDNY) received comparatively little immediate attention. Last Thursday, Judge Loretta Preska ruled that the Consumer Finance Protection Bureau (CFPB) cannot bring an enforcement action in district […]

Notice & Comment

The Appointments Clause–A Modest Take*

Yesterday the Supreme Court ruled in Lucia v. SEC, evaluating whether the Securities and Exchange Commission had used improper methods to hire its administrative law judges. A fairly lopsided 7-2 margin of justices concluded that it had. Standing alone, Justice Stephen Breyer found that the SEC had committed a statutory violation by improperly delegating appointments […]

Notice & Comment

The Government and the Appointments Clause—Just the Facts

Today the Supreme Court will hear argument in Lucia v. SEC about whether Securities and Exchange Commission administrative law judges (ALJs) exercise “significant authority” and thus are subject to the Constitution’s Appointments Clause requirements. The straightforward arguments from the government and the petitioner, showing how ALJs are “officers” under Supreme Court precedent, history, and the […]

Notice & Comment

Appointments Clause Symposium on Lucia v. SEC: Are SEC ALJs “Officers of the United States”?

Starting today, for the next two weeks the Notice & Comment blog will run a symposium addressing the Supreme Court’s upcoming consideration of the constitutionality of hiring procedures for administrative law judges in the Securities and Exchange Commission. On Monday, April 23, the Supreme Court will hear oral argument in Lucia v. SEC, which raises […]

Notice & Comment

Missing History in the Court-Appointed Amicus Brief in Lucia v. SEC

This week the amicus appointed to advocate for the lower-court judgment in Lucia v. SEC filed his brief. The case addresses whether administrative law judges in the SEC are Article II “Officers of the United States” subject to the Constitution’s Appointments Clause requirements. U.S. Const. art. II, § 2. Court-appointed amicus, Mr. Metlitsky, technically supports […]

Notice & Comment

Upcoming Symposium, 4/2-4/13: The Supreme Court’s Consideration of Whether SEC ALJs are “Officers” Subject to Appointments Clause Requirements (Lucia v. SEC)

Regular readers of this blog may have been following along with us here at “Notice and Comment” as we have reported on the twists and turns of litigation challenging the constitutionality of hiring procedures for administrative law judges in the Securities and Exchange Commission. On April 23, the litigation’s fascinating path will culminate in Supreme […]

Notice & Comment

The Alternative Separation of Powers in Constitutional Coup

I am honored to have the chance to review Jon Michaels’s engaging, brilliantly written, and insightful work. Constitutional Coup is a very enjoyable read, chock-full of creative word pictures like Michaels’s description of the “torch and pitchfork crowd” out to get the “Nanny State.” As Jeff Pojanowski and others have observed, the book is thought-provoking […]

Notice & Comment

Revisiting the Record on Removal

In April, the Supreme Court will hear oral argument in Lucia v. SEC to consider whether administrative law judges (ALJs) in the Securities and Exchange Commission (SEC) are “Officers of the United States.” If they are, the ALJs are subject to the Appointments Clause, requiring them to be appointed by the President, a department head, […]

Notice & Comment

Will the Supreme Court Revisit Deference Doctrines This Term?

Yesterday in his Supreme Court Relist Watch, John Elwood highlighted the Supreme Court’s unusual action this past summer on a cert petition regarding Chevron deference. Mr. Elwood observed that the Supreme Court relisted—again— Scenic America, Inc. v. Department of Transportation, 16-739, which garnered attention this summer when the court called for a reply . . […]