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 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 […]
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 […]
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, […]
I have long admired Jon Michaels’ work on separation of powers and government privatization, so I was thrilled to learn he had further synthesized these strands of his research in a book-length treatment: Constitutional Coup: Privatization’s Threat to the American Republic. And I’m excited we’re hosting this symposium on the book here at the Notice and […]
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, […]
Jon Michaels has written an important book — and I say that even though I suspect that he and I disagree about many things! Although the administrative state has value, it also “has its share of problems.” For instance, the federal government sometimes overreaches in “ominous” and even “crushing” ways. Like the Chief Justice, I’m […]
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 […]
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 […]
At long last, the en banc D.C. Circuit has decided PHH Corp. v. CFBP. This case — which, of course, we have discussed many times here at Notice & Comment — concerns the constitutionality of the restrictions on the President’s ability to remove the CFPB director (namely, only for “for inefficiency, neglect of duty, or […]
Have you ever read the unabridged Les Misérables?* One of my favorite activities — unfortunately, not one I do all that often — is reading 19th-century fiction. For a long time, my favorite author was Thackeray. Recently, however, I’ve started re-reading the greatest hits of Victor Hugo. And sure enough, Les Misérables is an amazing […]
The Kozinski drama has been a tragic one on so many levels. Most importantly, if what is alleged is true–and given the nature of the reporting, I’ve seen no reason to doubt it–one of the most prominent judges in the United States has waged a multi-decade campaign of corrosive sexual harassment and assault on clerks, […]
Yesterday, the Securities and Exchange Commission (SEC) hedged its bets: it issued an order ratifying the prior appointments of its administrative law judges (ALJs). The order also called for fresh proceedings in pending actions before these newly-blessed ALJs. The SEC did all of this to “put to rest” the argument — now pursued by the […]
This afternoon the Government filed its long-awaited brief in Lucia v. SEC. (Well, at least long-awaited by those of us who geek out on the Appointments Clause.) As readers of this blog likely will remember, over the past 16 months a circuit split developed, disappeared, and then reappeared as the Tenth Circuit and D.C. Circuit […]
The D.C. Circuit did a noteworthy yet routine thing this week — it denied rehearing en banc in Wrenn v. District of Columbia, the Court’s recent Second Amendment case. No judge even called for a vote. Why is this “noteworthy”? Because Wrenn addressed a constitutional issue and the panel opinion prompted a dissent. So why […]