You may have noticed that Notice & Comment has hosted a series of posts highlighting the administrative law views of several judges on President Trump’s list of potential Supreme Court nominees. In light of this week’s big news (and no, we aren’t talking about the D.C. Circuit’s Revised Bills of Costs), it’s time for D.C. […]
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 […]
A few weeks back, I raised a question about Texas’s latest challenge to the Affordable Care Act: do the plaintiffs even have standing to sue? Now that the Justice Department has thrown in the towel and declined to the defend the statute, that question has become a lot more urgent. To demonstrate standing, Texas and […]
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 […]
In a lengthy blog post about the Texas lawsuit that’s trying to bring down the ACA, Josh Blackman takes aim at an amicus brief filed by a bipartisan group of law professors (including me). The brief argues that the Affordable Care Act should stand, even if the penalty-free individual mandate is held unconstitutional. Blackman isn’t […]
That’s the opening of a piece of mine in the Wall Street Journal (gated, unfortunately) about what states should do in response to the Trump administration’s anticipated relaxation of rules governing short-term plans. Where states allow short-term plans without restriction, the plans will be a lot cheaper than those sold on the exchanges because they don’t have to comply with the ACA. But that low price comes with […]
Here is the May 2018 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. There’s a lot of new scholarship on this list, adding signficantly to my summer reading list: Petitioning and the Making of the Administrative State by […]
The headline administrative law opinion coming out of the Supreme Court yesterday was no doubt Justice Kagan’s opinion for the Court in Lucia v. SEC, which held that administrative law judges at the SEC are (at least inferior) officers under the Appointments Clause and thus unconstitutionally appointed by agency officials who are not the head of […]
If you care about administrative law judges (and who doesn’t?*), you ought to follow Kent Barnett on Twitter (ugh). He knows more about ALJs — and their cousins, administrative judges — than anyone I know. And if you care about the Appointments Clause (and, again, who doesn’t?**), you ought to follow Jenn Mascott on Twitter. […]
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 […]
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172 (June 4, 2018), the U.S. Supreme Court invalidated a Colorado Civil Right Commission decision requiring a bakery to sell a cake in connection with a same-sex couple’s wedding reception, despite the owner’s religious opposition to same-sex marriage. It held that unconstitutionally anti-religious bias infected […]
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 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172 (June 4, 2018), the U.S. Supreme Court invalidated a Colorado Civil Right Commission decision requiring a bakery to sell a cake in connection with a same-sex couple’s wedding reception, despite the owner’s religious opposition to same-sex marriage. It held that unconstitutionally anti-religious bias infected […]
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 […]