SEC v. Lucia is an extraordinary case in several respects. First, it is an Appointments Clause case. When I worked in the Office of Legal Counsel (from 1993-1997), we handled Appointments Clause issues on an at least weekly basis. In striking contrast, the Supreme Court has only rarely opined on the meaning of the Clause. […]
IWP News has published a thought-provoking series of articles dealing with “the deregulatory efforts of the Trump administration.” One such article reports on the views from third parties on the regulatory budget: “White House efforts to establish a first-time “regulatory budget” would be assisted by the development of a cross-sector, “national constituency” in support of regulatory […]
Let me begin with a confession: I’m not an expert on the meaning of the Appointments Clause. Of course, because I teach administrative law, I know the basics — I’ve read the leading cases and even some law review articles. Even so, I approach this symposium as a layman, not an expert. Yet even as […]
The Supreme Court is poised to hear arguments in Raymond J. Lucia v. SEC on Monday, April 23, 2018. The sole issue for which cert was granted is whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC) are officers of the United States within the meaning of the Federal Constitution’s appointments clause. […]
Let me begin by apologizing for the delay and by thanking the JREG crew and, of course, Chris Walker, for hosting this symposium and putting together a remarkable roster of essayists. The breadth and depth of the essays are a testament to the strength and vitality of the administrative law community. What’s more, they reflect […]
In Marinello v. United States, 584 U.S. — (2018), the Supreme Court wrestled with whether the federal tax obstruction statute reaches conduct unrelated to an ongoing or contemplated IRS proceeding. Section 7212(a) states, in relevant part, that anyone who “corruptly or by force . . . obstructs or impedes, or endeavors to obstruct or impede […]
On January 5, 2018, U.S. Customs and Border Protection (“CBP”) reported that in fiscal year 2017, it conducted 30,200 searches of electronic devices at border entries. CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics (January 5, 2018), accessible at https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-search-electronic-device-directive-and. The number of searches reported included devices carried by people entering and […]
Over at the Law and Liberty blog today, I have a post with a provocative (click-baity?) title on Kent Barnett, Christina Boyd, and my new paper Administrative Law’s Political Dynamics (Vanderbilt Law Review forthcoming). Here’s a snippet from my post: The call to eliminate Chevron deference has largely come from those right of center. But it would […]
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 […]
If the Supreme Court decides in Lucia v. SEC that the SEC’s administrative law judges are officers, what are the implications on other cases at the SEC (or similarly situated agencies)? The effect will likely differ depending on whether other cases have become final or are still pending before the agency or a court. Here, […]
In February, I submitted an amicus brief to the Supreme Court in the case Lucia v. SEC, arguing that the original public meaning of the term “Officer(s) of the United States” referred to any government employee exercising non-negligible federal power. While I submitted the brief on behalf of a fifteen corpus linguistics scholars, in a […]
Many jurisdictions seek to protect undocumented aliens by adopting “sanctuary” policies. Those policies generally constrain the conduct of a state or local government’s own employees. They (1) prohibit public employees from gathering information on the immigration status of those with whom they interact, (2) limit public employees from sharing any such information collected with ICE, […]
It’s hard to be a parent. Kids these days, after all, confront an avalanche of messages. How are they supposed to process a world where so much is happening so quickly? Plus media is no help. Even child-friendly content can be surreal. And don’t get me started on today’s music! “Rolly, Rolly, Rolly,” indeed. Sometimes, […]
From my inbox: We want to invite you to join us for our next program, the 2018 Spring Conference (14th Annual Administrative Law and Regulatory Practice Institute), on April 27, 2018 at the Park Hyatt in Washington, DC. The Spring Conference will feature a full-day of CLE panels with the top experts covering: Rulemaking 101- […]
In a recent post, Nicholas Bagley reported on the latest challenge to the Affordable Care Act. On February 26th, twenty states filed a lawsuit alleging that the individual mandate is unconstitutional. Right away, you might be wondering about two questions: Didn’t Congress repeal the individual mandate in the Tax Cuts and Jobs Act back in […]