The Supreme Court is in crisis. It is already June yet almost half of the High Court’s cases remain undecided. For the Justices to finish their work by July 1, they will have to decide “29 of 63 argued cases” this month alone. What is happening? And why? Most importantly, can the Court — nay, […]
Reading How Appealing, I stumbled across this provocative headline: “Did the Supreme Court Just Gut the New Deal?” I later found a similar headline: “Neil Gorsuch Just Demolished Labor Rights in a Frontal Attack on the New Deal.” The subject of these headlines, of course, is the Supreme Court’s opinion in Epic Systems v. Lewis, […]
Ever since I was a 2L, I’ve had a soft spot for Judge David Sentelle. It is not because he is a “very bright and capable” jurist — though he surely is that. And it is not because he is a published author — though his book is quite good. It is not even because […]
April has been a busy month here at the Notice and Comment blog, with a terrific, two-week symposium organized by my co-blogger Jennifer Mascott on Lucia v. SEC, the constitutional challenge to the appointment of SEC administrative law judges that the Supreme Court heard on Monday. So my monthly SSRN post is coming a bit […]
Today the Supreme Court will hear argument in Lucia v. SEC about whether Securities and Exchange Commission administrative law judges (ALJs) exercise “significant authority” and thus are subject to the Constitution’s Appointments Clause requirements. The straightforward arguments from the government and the petitioner, showing how ALJs are “officers” under Supreme Court precedent, history, and the […]
On Monday, the Supreme Court will hear oral arguments in the case Lucia v. SEC. The question presented is whether administrative law judges of the Security Exchange Commission should be considered “Officers of the United States” subject to the Appointments Clause of the U.S. Constitution. In a previous post, I suggested that the Court should […]
Among the structural provisions contained in the Constitution, the Appointments Clause seems at first blush to be the one least susceptible to interpretive confusion. The Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all [ ] Officers of the United States” whose appointments […]
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 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, […]
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 […]
This Term the Supreme Court will decide two cases that could shape the constitutional future of agency adjudication. First, in Oil States Energy Services v. Greene’s Energy Group, the Court will decide whether certain agency adjudications at the U.S. Patent and Trademark Office unconstitutionally strip parties of their property rights in issued patents. Second, in […]
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. […]
A key question on every adlaw geek’s mind is how the Supreme Court’s decision in Lucia might affect the process for appointing Administrative Law Judges (ALJs). What if the Supreme Court holds that ALJs are inferior officers who must be appointed in compliance with Article II’s Appointments Clause? What implications, if any, would this have for […]