The fate of the CFPB, and potentially of agency independence writ large, hinges on the Supreme Court’s decision in Seila Law v. CFPB, which was argued before the Supreme Court last week. Most of the commentary has focused on how the Court might distinguish the CFPB from other independent agencies like the SEC and FTC, […]
This month’s en banc D.C. Circuit decision in PHH Corp. v. CFPB has understandably received widespread attention for upholding the constitutionality of the CFPB’s structure in the face of a separation-of-powers challenge. But somewhat hidden within the hundreds of pages of separate opinions in PHH was another constitutional ruling—one on which the CFPB lost and […]
Earlier this week, as I was reading the en banc decision in PHH Corp. CFPB, it struck me that the Court cited a large number of law review articles. So for this bonus edition of D.C. Circuit Review – Reviewed, I asked my dutiful research assistants to put together a chart of the articles cited […]
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 […]
Each summer the Southeastern Association of Law Schools (SEALS) hosts an amazing conference of law professors (some day I will go!), full of great panels and discussion on hot topics and cutting-edge research in law and policy. This year’s conference was no exception. But this year SEALS added a terrific innovation of providing recaps on many […]
Last Friday, the Consumer Financial Protection Bureau filed a petition for en banc review in PHH Corp. v. CFPB. The petition challenges Judge Kavanaugh’s opinion for two judges of a panel of the D.C. Circuit, which declared unconstitutional the statute limiting the President’s authority to remove the CFPB’s Director, Richard Cordray. In doing so, the […]
The Federal Trade Commission appears on a collision course with the Supreme Court. Even as the Court reins in the discretion of independent agencies to increase their accountability to the President and Congress, the FTC is charging ahead with new rules and novel theories that stretch the limits of its authority. For instance, the FTC […]
Nope!* * It’s been a good run. If you’re interested, here is the complete list of posts: August 2015: Obamacare Round 3? King Solomon and the APA “It was the best of times ….” Can You Keep a Secret? September 2015: The Second Most Important Court? The Future of […]
Last week was a bad one for the DDC. Well, this week was a bad one for the D.C. Circuit. In Seila Law v. CFPB, the Supreme Court rejected the en banc D.C. Circuit’s decision in PHH Corp. v. CFPB. Familiarity with PHH Corp. and Seila Law will be assumed for this week’s post. (If […]
In Seila Law v. CFPB, the Supreme Court will consider whether the CFPB Director’s for-cause removal protection—removal only for “inefficiency, neglect of duty, or malfeasance in office”—unconstitutionally detracts from the President’s executive power. But to decide that issue, doesn’t the Court need to first decide what “inefficiency,” “neglect of duty,” or “malfeasance in office” actually […]
Separation-of-powers cases tend to be controversial. For instance, when the D.C. Circuit last addressed removal and initially concluded that Congress could not grant the Consumer Financial Protection Bureau’s Director “for cause” protection, the United States argued that the panel had “set[] up what may be the most important separation-of-powers case in a generation.” What followed […]
Administrative law is generally conditioned on agency action. Notice and comment rulemaking mandates “the agency shall give interested persons an opportunity to participate in the rule making.” 5 U.S.C. § 553(c). Chevron deference contemplates judicial consideration of “an agency’s construction of the statute which it administers,” and Auer deference requires judges to consider “the agency’s […]
This will be a quick post; I am traveling.* Today the Supreme Court granted certiorari in an important administrative law case — out of the Ninth Circuit: Why am I writing a post about the Ninth Circuit? Isn’t that what Ninth Circuit Review — Reviewed is for? Because this isn’t really a Ninth Circuit case […]
If you follow the D.C. Circuit, you have probably already read the Court’s (latest) “net neutrality” decision, or at least heard about it. When big cases come along, my goal is to come up with something new to say. That often isn’t easy to do. But I try. For instance, after the D.C. Circuit’s 2016 […]
I’m in Maryland today — to learn about the D.C. Circuit. Cambridge, Maryland is home to the 2019 D.C. Circuit Judicial Conference.* Because I’m rushing to catch a flight home, this will be a post filled with a hodgepodge of thoughts. (1) If you’re wondering whether we should have Judicial Conferences, here are some thoughts […]