Notice & Comment

Notice & Comment

Notice & Comment

Applying the “Deliberative Process Privilege” to Internal Agency Debates Regarding Communications Strategy

On December 14, 2017, the Federal Communications Commission voted to repeal its Obama-Era net neutrality rules.  The day before the vote, FCC Chair Ajit Pai appeared in a humorous and unconventional “Harlem Shake” video produced by the Daily Caller, a conservative website.  In the video, entitled “7 Things You Can Still Do After Net Neutrality,” […]

Notice & Comment

The Inferior (Subordinate) Officer Test and the Officer/Non-Officer Line, by Tuan Samahon

I concur with Professor Aaron Nielson’s blog post, “Drawing Two Lines,” that there are two sets of lines to be managed under the Appointments Clause: (i) the line between principal and inferior officer and (ii) the line between officers and non-officers, or to use the nineteenth-century French loan word used to describe that remainder category, […]

Notice & Comment

Auer Deference with a Foreign Twist, by Jeffrey Lubbers

For some years, there has been a lot of debate (including in a symposium in this blog) about the continued viability of the Auer/Seminole Rock deference doctrine, under which, subject to various exceptions, courts are supposed to give an agency’s interpretation of its own regulations “controlling weight, unless that interpretation is plainly erroneous or inconsistent […]

Notice & Comment

Opportunities at ACUS

The Administrative Conference of the United States is hiring!  The agency is accepting applications for the full-time position of Attorney Advisor (to start this spring or summer), as well as for a term-limited fellowship designed for current or aspiring administrative law scholars (start date is flexible and will be negotiated).  If you’re interested in administrative procedure and […]

Notice & Comment

The Untold Story of Lucia v. SEC: The Constitutionality of Agency Adjudications, by Ilan Wurman

In this symposium on Lucia v. SEC, most of the posts have, quite rightly, discussed what Lucia is actually about—whether ALJs are inferior officers for purposes of the appointments clause to the Constitution. And although the question is not before the Court, if they are inferior officers then that raises intriguing questions about for-cause removal […]

Notice & Comment

Chief Justice Marshall and the Appointments Clause, by Garrett West

Lucia v. SEC seems set to give some content to Buckley v. Valeo’s cryptic distinction: while officers exercise “significant authority under the laws of the United States,” employees are just “lesser functionaries.” Since Buckley, the Court expanded its analysis again in Freytag, but the employee-officer distinction still remains ill-defined. What’s so strange about both Freytag […]

Notice & Comment

Afterward to the Constitutional Coup Symposium (Part II), by Jon D. Michaels

V. Aaron Nielson is always among the most cheerful and helpful of critics.  In his review (“Pretend Privatization”), Aaron focuses on what he calls pretend privatization, which he defines in terms of “situations in which the government tries to avoid being labeled as the government, even though it still wants to exercise the powers of […]