Author Archives: Guest Blogger

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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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 […]

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 […]

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 […]

What is Lucia About?, by Urska Velikonja

by Guest Blogger — Wednesday, Apr. 11, 2018

The question presented in Lucia v. SEC is a limited question with, as Kent Barnett told us at the beginning of this symposium, limited implications. Cases that have been decided will not be affected. Prospectively, the Appointments Clause issue can be resolved with a stroke of each agency’s pen, much like the SEC did in […]

Who Would Founding-Era Americans Have Thought an Officer Was?, by James Phillips

by Guest Blogger — Tuesday, Apr. 10, 2018

My co-authors (Jacob Crump and Benjamin Lee) and I recently posted on SSRN a study we did of the original meaning of the phrase “Officers of the United States.” Our study was motivated by Jenn Mascott’s recent article in the Stanford Law Review. As part of her research, Professor Mascott performed “corpus-like analysis” on a […]

(If the Supreme Court Agrees) The 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 — Tuesday, Apr. 10, 2018

My symposium entry is an updated version of my February 26, 2018 post to this blog. I should also note that I signed the amicus brief authored by Professor Pierce and his colleagues, primarily because it urges the Court not to agree with the SG’s brief concerning removal protection for ALJs.]  Anyone interested in preserving […]

Auer Deference with a Foreign Twist, by Jeffrey Lubbers

by Guest Blogger — Monday, Apr. 9, 2018

For some years, there has been a lot of debate (including in a symposium in this blog) about the continued viability of the Auer/Seminole Rock deference doctrine, under which, subject to various exceptions, courts are supposed to give an agency’s interpretation of its own regulations “controlling weight, unless that interpretation is plainly erroneous or inconsistent […]

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Past, Present, and Precedent in Lucia, by Gillian Metzger

by Guest Blogger — Monday, Apr. 9, 2018

Much of the debate in Lucia has focused on history, and more particularly on the original understanding of who counted as an officer at the founding. As Neil Kinkopf notes, this reflects in part the paucity of Supreme Court precedent on the meaning of inferior officer; it also reflects the originalist focus of many contemporary […]

The Inferior (Subordinate) Officer Test and the Officer/Non-Officer Line, by Tuan Samahon

by Guest Blogger — Monday, Apr. 9, 2018

I concur with Professor Aaron Nielson’s blog post, “Drawing Two Lines,” that there are two sets of lines to be managed under the Appointments Clause: (i) the line between principal and inferior officer and (ii) the line between officers and non-officers, or to use the nineteenth-century French loan word used to describe that remainder category, […]