Monthly Archives: November 2017

“Optimal Ossification” — My New Paper

by Aaron Nielson — Thursday, Nov. 30, 2017@Aaron_L_Nielson

A draft of my latest paper — Optimal Ossification — is now available. It will be published next spring in the George Washington Law Review’s annual administrative law issue.* Here is the abstract: One of the dirtiest words in administrative law is “ossification”—the term used for the notion that procedural requirements force agencies to spend […]

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New Government Position on the SEC’s ALJs: They Are Article II “Officers”

by Jennifer Mascott — Wednesday, Nov. 29, 2017@jennmascott

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 […]

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ABA AdLaw Section Teleforum, 12/4: Dueling Acting Directors at the CFPB: Statutory and Constitutional Issues

by Christopher J. Walker — Wednesday, Nov. 29, 2017@chris_j_walker

Anne Joseph O’Connell has organized a terrific ABA teleforum on the CFPB dueling directors dispute for December 4, 2017, from 3PM-4PM eastern. It’s free and open to the public, but you must register here. [12/1 Update: The ABA has recruited two additional panelists — Nina Mendelson and Jonathan Adlaw — so I’ve updated the post […]

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The President’s Absolute Immunity for Unlawfully Firing a Subordinate

by Andy Grewal — Tuesday, Nov. 28, 2017

My prior post examined a state court case, Ex Parte Parry, which held that the prosecution of the state’s chief executive, Governor Rick Perry, for an official act would violate the separation of powers under that state’s constitution. The post argued that the U.S. Supreme Court could adopt a similar separation of powers argument if […]

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Ideology and Expertise: Reflecting on Stephen F. Williams’s Maklakov

by Peter Conti-Brown — Tuesday, Nov. 28, 2017

Although our active blogging on the CFPB debacle now makes last week seem like ancient history, we had a historic occasion to host Judge Stephen F. Williams as a guest blogger. (Here is my introduction; here is Sam Halabi’s review of Judge Williams’s book; and his posts are here, here, and here.) I hope our […]

A Busy 68th Plenary! (ACUS Update)

by Emily Bremer — Tuesday, Nov. 28, 2017@emilysbremer

The Administrative Conference will host its 68th Plenary Session on December 14th and 15th, 2017.  It’s shaping up to be a busy one, with five proposed recommendations going before the Assembly for approval.  From the Federal Register notice, these recommendations address the following subjects: Plain Language in Regulatory Drafting. This proposed recommendation identifies tools and techniques agencies have used […]

Chenery II * May * Pose a Threat to Liberty

by Aaron Nielson — Monday, Nov. 27, 2017@Aaron_L_Nielson

It appears my post from last week was not as clear as I had hoped. I hate when that happens! In particular, I don’t think Professor Richard Pierce — who literally wrote the book on administrative law — and I disagree all that much. Yet he says “the threat to liberty McGahn and Nielson ascribe […]

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Chenery II Poses No Threat to Liberty, by Richard J. Pierce Jr.

by Guest Blogger — Monday, Nov. 27, 2017

On November 24, Aaron Nielson wrote a blog in which he quoted White House Counsel Don McGahn as saying that the Supreme Court’s opinion in SEC v. Chenery, 332 U.S. 194 (1947) (Chenery II) announces “a doctrine that has empowered agencies . . . to announce new rules during enforcement actions without any fair notice.” […]

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Forgetting Appointments—Can the CFPB director appoint the deputy director in the first place?, by Kent Barnett

by Guest Blogger — Monday, Nov. 27, 2017

Who’s the legal acting director of the Consumer Financial Protection Bureau? Is it Leandra English, whom former director Richard Cordray appointed under his statutory authority as deputy director? Or is Mick Mulvaney, whom President Trump has appointed under the Federal Vacancies Reform Act (FVRA)? It’s a difficult legal question that only administrative-law scholars could love. […]

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English v. Trump and “Shall” v. “May”

by Daniel Hemel — Monday, Nov. 27, 2017

The deputy director of the Consumer Financial Protection Bureau, Leandra English, has filed a lawsuit asking a federal district court to prevent President Trump from installing Mick Mulvaney, who is currently the director of the Office of Management and Budget, as the CFPB’s acting chief. Based on everything I know, I think that English would do a […]