The House of Representatives plans to vote this Thursday on a constitutional amendment to require a balanced budget. To ensure that a future Congress does not use budgetary gimmicks to avoid balancing the budget, I suggest including two additional provisions: (i) prevent the shifting of costs into future fiscal years and (ii) enshrine the independence of […]
The question presented in Lucia v. SEC is a limited question with, as Kent Barnett told us at the beginning of this symposium, limited implications. Cases that have been decided will not be affected. Prospectively, the Appointments Clause issue can be resolved with a stroke of each agency’s pen, much like the SEC did in […]
The Securities and Exchange Commission (SEC), like any busy group of officials, can’t do everything itself. It has to delegate tasks. Not only is delegation inevitable, it is often wise. Delegating to others can promote agency expertise; it can preserve Commission resources for higher priorities. At the same time, delegation has its pathologies. It can […]
My symposium entry is an updated version of my February 26, 2018 post to this blog. I should also note that I signed the amicus brief authored by Professor Pierce and his colleagues, primarily because it urges the Court not to agree with the SG’s brief concerning removal protection for ALJs.] Anyone interested in preserving […]
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,” […]
My co-authors (Jacob Crump and Benjamin Lee) and I recently posted on SSRN a study we did of the original meaning of the phrase “Officers of the United States.” Our study was motivated by Jenn Mascott’s recent article in the Stanford Law Review. As part of her research, Professor Mascott performed “corpus-like analysis” on a […]
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, […]
Much of the debate in Lucia has focused on history, and more particularly on the original understanding of who counted as an officer at the founding. As Neil Kinkopf notes, this reflects in part the paucity of Supreme Court precedent on the meaning of inferior officer; it also reflects the originalist focus of many contemporary […]
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 […]
There are many talented people in this world. Some people can sing; others can dance; others still can pole vault, run regressions, mimic bird calls, entertain large crowds with wit and charm, or even switch hit. Alas, I can do none of those things. Instead, I have only two real skills: I can (1) sleep […]
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 […]
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 […]
Lucia v. SEC is technically about the Appointments Clause, but really it is about unfairness. Can defendants get a fair shake in ALJ proceedings? If they can’t, there may be a reason for the Supreme Court to do something about ALJs. But if they can, then twisting and turning doctrine to undo this pillar of […]
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 […]
From the Duke Law Journal Editors: The Duke Law Journal invites proposals for its 49th Annual Administrative Law Symposium, to be held in February 2019, at Duke University School of Law in Durham, North Carolina. The Duke Law Journal’s Administrative Law Symposium has been the premier administrative law event for over four decades. Previous symposia […]