SG’s Brief in Lucia Could Portend the End of the ALJ Program as We Have Known It, by Jeffrey S. Lubbers

by Guest Blogger — Monday, Feb. 26, 2018

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 […]

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That One Time I Agreed with Ian Millhiser (on Constitutional Law, No Less!)

by Chris Walker — Tuesday, Mar. 6, 2018@chris_j_walker

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 […]

Pretend Privatization

by Aaron Nielson — Monday, Mar. 5, 2018@Aaron_L_Nielson

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 […]

Revisiting the Record on Removal

by Jennifer Mascott — Monday, Mar. 5, 2018@jennmascott

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, […]

D.C. Circuit Review – Reviewed: A (Mostly) Quiet Week

by Aaron Nielson — Friday, Feb. 23, 2018@Aaron_L_Nielson

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 […]

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ABA Teleconference: Who Are You to Judge? The Supreme Court Revisits the Constitutionality of Agency Adjudication

by Aaron Nielson — Friday, Feb. 16, 2018@Aaron_L_Nielson

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 […]

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D.C. Circuit Review – Reviewed: The I-Don’t-Have-Time-To-Read-It-All Version of PHH Corp. v. CFPB

by Aaron Nielson — Wednesday, Jan. 31, 2018@Aaron_L_Nielson

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 […]

D.C. Circuit Review – Reviewed: The Middle Chapters

by Aaron Nielson — Friday, Jan. 12, 2018@Aaron_L_Nielson

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 […]

The SEC’s Subdelegated Appointments Power

by Jennifer Nou — Friday, Dec. 1, 2017@Jennifer_Nou

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 […]