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, […]
I was gone last week when twenty states filed yet another lawsuit challenging the constitutionality of the Affordable Care Act. But no matter. This case isn’t going anywhere—or at least it shouldn’t go anywhere. In their complaint, the states point out (rightly) that the Supreme Court upheld the ACA in NFIB v. Sebelius only because […]
Before jumping into this week’s post, I want to express appreciation for and to the D.C. Circuit Clerk’s Office. The D.C. Circuit is closed today because of the weather. The good folks in the Clerk’s Office, however, still docketed the Court’s opinion. Sincere thanks — you are professionals. Also, this week the D.C. Circuit announced […]
There has been much alarmism from immigrant rights advocates about the Supreme Court’s decision in Jennings v. Rodriguez. In a very practical way, this alarm is entirely justified. The Court has, for now, eliminated the possibility of bond hearings for immigrants subject to “mandatory detention” while they fight their deportations. Personally, I find that practical […]
The balance of power in immigration law is heavily tilted toward the government. As the Supreme Court’s decision this week in Jennings v. Rodriguez shows, the exact constitutional limits to the government’s power are still unclear. Foreign nationals do have some rights, but they often feel the weight of government power to an exceptional extent. Individuals […]
Last November the Supreme Court heard oral argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC to consider whether certain agency adjudications at the U.S. Patent and Trademark Office are unconstitutional because they strip parties of their private property rights in a non-Article III forum and without a jury. At oral argument, the justices raised […]
Anyone interested in preserving the independence of Administrative Law Judges (ALJs) should be alarmed at Solicitor General Neal Francisco’s brief (nominally) on behalf of the SEC in the case pending at the Supreme Court, Raymond J. Lucia Petitioners v. The Securities and Exchange Commission. I say “nominally” because the front page of the brief itself […]
This was a quiet week in the D.C. Circuit — that is, unless you study Internet Law.* The D.C. Circuit again confronted the turbulent waters of “net neutrality.” Indeed, it did so in two ways, one high profile and one low profile. High profile, more than 20 States refiled their petition for review of the […]
I’ve got a new piece at Vox digging into Idaho’s decision to flout the Affordable Care Act. If you want to learn something about Idaho administrative law (I know, I know, pure clickbait) this is the place to look. I also examine the analogy between what Idaho’s doing and marijuana legalization. The upshot is that […]
The ABA’s Section of Administrative Law & Regulatory Practice will host an interesting — and free! — teleconference on agency adjudication. Here is the information: Who Are You to Judge? The Supreme Court Revisits the Constitutionality of Agency Adjudication February 26, 2018 | 4:00 PM – 5:00 PM EST | Teleconference Decades after last considering […]
Apologies again; this post is also a quick one. I don’t often agree with Richard Posner.* But I’m sympathetic to his criticism of “mock trials” involving real judges. This is how they work. A pair of (often famous) lawyers reimagine historical — or historical-ish — cases before a panel of honest-to-goodness judges while an audience […]
From the Federalist Society Regulatory Transparency Project website: In 2017, the U.S. experienced a dramatic shift in regulatory policy at the federal level. This shift is attributable to a new presidential administration that has made regulatory reform a priority. This priority is evidenced by numerous regulatory initiatives including Executive Order 13771 that directs agencies, among […]
This month’s en banc D.C. Circuit decision in PHH Corp. v. CFPB has understandably received widespread attention for upholding the constitutionality of the CFPB’s structure in the face of a separation-of-powers challenge. But somewhat hidden within the hundreds of pages of separate opinions in PHH was another constitutional ruling—one on which the CFPB lost and […]
The line between a court and an administrative agency is fuzzy—but two cases this Term suggest that the Justices have an appetite for making it at least somewhat sharper. A couple of weeks ago, the Court heard Dalmazzi v. Unites States, a case in which the Justices made the unusual move of granting the motion […]
This month’s SSRN reading list likely constitutes the calm before the storm of new administrative law scholarship, as the spring law review season opens up and scholars begin posting new articles to SSRN. But January was still a solid month for new scholarship. Here is the January 2018 edition of the most-downloaded recent papers (those […]