Monthly Archives: April 2018

Justice Gorsuch, Immigrants, and Administrative Law

by Jill Family — Friday, Apr. 20, 2018

This week the Supreme Court voided a federal statute for vagueness.   In his concurring opinion, Justice Gorsuch agreed that the statute is unconstitutionally vague.  To support this conclusion, he emphasized his concerns about separation of powers principles. His use of separation of powers concerns in an immigration law case is a signal that Justice Gorsuch […]

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A Special Master for the Cohen Case?, by Edward B. Foley

by Guest Blogger — Tuesday, Apr. 17, 2018

As one who has studied the role of impartial institutions for the purpose of resolving electoral disputes—and has advocated the creation of special nonpartisan tribunals in high-profile cases (like Minnesota’s Coleman-Franken recount in 2008)—I wonder whether the appointment of a special master, as Judge Kimba Wood is reportedly considering, is appropriate for the review of the material seized from […]

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Scott Pruitt’s Security Detail–A Tax Problem?

by Andy Grewal — Monday, Apr. 16, 2018

Over at PostEverything, Professors Daniel Hemel and David Herzig argue that Scott Pruitt, the administrator of the Environmental Protection Agency, “could be in tax trouble on top of his ethical and political problems.” Hemel & Herzig, “Scott Pruitt’s travel could leave him with a big tax bill,” (April 16, 2018). The authors note that Pruitt’s […]

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Conclusion: Lucia v. SEC Symposium on the Appointments Clause

by Jennifer Mascott — Monday, Apr. 16, 2018@jennmascott

And . . . that’s a wrap. Thank you to the many commentators who participated in the Notice & Comment symposium over the past two weeks regarding the Supreme Court’s upcoming consideration of the Appointments Clause in Lucia v. SEC. The Court will hear oral argument in the case on Monday, April 23. In Lucia, […]

The Constitutional Status of “Deputy” Officers, by Aditya Bamzai

by Guest Blogger — Monday, Apr. 16, 2018

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 […]

Over at Law and Liberty: Philip Hamburger’s Chevron Bias, Illustrated by Statistics

by Christopher J. Walker — Monday, Apr. 16, 2018@chris_j_walker

Over at the Law and Liberty blog earlier this month I did a quick post, provocatively titled The Federalist Society’s Chevron Deference Dilemma, on my new paper with Kent Barnett and Christina Boyd. I knew suggesting that Chevron deference *may* have some benefits — in particular, reducing partisanship in judicial decisionmaking — was not likely to be well […]

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Mystery and Audacity in Lucia, by Marty Lederman

by Guest Blogger — Monday, Apr. 16, 2018

How to explain Lucia v. SEC? The question presented—whether the Constitution requires the Securities and Exchange Commission itself to appoint its ALJs, rather than delegating that appointment authority to its Human Resources Department—is as a practical matter obsolete, because the agency has now adopted the view, rightly or wrongly, that the Commissioners themselves must do […]

D.C. Circuit Review – Reviewed: Hello Again, Browning-Ferris

by Aaron Nielson — Friday, Apr. 13, 2018@Aaron_L_Nielson

Warning: Unless you enjoy reading docket entries, this is not an especially exciting post. A few months ago I authored a post called “Bye-Bye, Browning-Ferris.” There, I addressed the NLRB’s decision to overrule Browning-Ferris, a precedent which had “made it easier for unions to go after franchisees and contractors. Before Browning-Ferris, companies were ‘joint employers’ […]

Lucia v. SEC: Reining in the Fourth Branch, by Ilya Shapiro

by Guest Blogger — Thursday, Apr. 12, 2018

We begin with first principles: the Constitution created three branches of government. The legislative and executive branches are periodically checked by the electorate. To make that electoral check work for the executive branch, however, the one official actually accountable to voters, the president, is supposed to be able to supervise it. As James Madison noted […]

The SEC’s Improper Subdelegation (Statutory, not Constitutional)

by Jennifer Nou — Wednesday, Apr. 11, 2018@Jennifer_Nou

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 […]