The Supreme Court issued its opinion in Lucia v. SEC on June 21, 2018. The Lucia Court held that “the [Securities and Exchange Commission’s] ALJs are Officers of the United States, subject to the Appointments Clause” and not “simply employees of the Federal Government.” The SEC’s ALJs are “Officers of the United States” because they […]
Author Archives: Guest Blogger
Reclaiming Notice and Comment: Part II, by Nancy Chi Cantalupo, Matthew Cortland, and Karen Tani
In an earlier post in this series, two of us (Cortland and Tani) described how the notice-and-comment process has entered the arsenal of a range of groups and organizers, many seeking to challenge the policies of the current administration. We made the case by highlighting grassroots efforts to explain to the public what notice-and-comment is and how to participate […]
Reclaiming Notice and Comment, by Matthew Cortland and Karen Tani
In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to tilt the scales in their favor.” The “notice and comment” process offered a key example: […]
What Does the Future Hold for Administrative Records after Department of Commerce v. New York?, by Aram A. Gavoor
Building on Chris Walker’s excellent day-of analysis of the Supreme Court’s decision in Department of Commerce v. New York, I write to provide insight on the Court’s treatment of administrative records in that case and to preview an essay that Steven Platt and I authored that analyzes the decision on that score and predicts consequences […]
The Regulatory State and Revolution: How (Fear of) Communism Has Shaped Administrative Law, by Evan Bernick
During its formative years, American administrative law was haunted by the specter of communism. At a time when democratic socialism is on the rise in American politics, it’s worth pausing to reflect upon this history—a history in which fears of radical political change inspired judicial and legislative efforts to limit the administrative state’s capacity to […]
Bending the Rules Symposium Response, by Rachel Potter
It is both humbling and daunting to have your book reviewed by so many eminent scholars. I am deeply grateful to Chris Walker and the JREG crew for hosting this symposium, and especially to Bridget Dooling for organizing it. When I first began writing Bending the Rules: Procedural Politicking in the Bureaucracy, my hope was […]
Ninth Circuit Review—Reviewed: Split Panel Demonstrates Modern Perversion of Justice Stevens’s Chevron “Legacy,” by William Yeatman
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” With the passing of Justice John Paul Stevens, RIP, I’ve read commentaries suggesting his Chevron deference “legacy” is at risk. In fact, these pundits are mistaken. While it’s true that Justice Stevens penned […]
Bending the Rules: Procedural Politicking or Bureaucratic Perfidy (Part II), by Bernard Bell
In Bending the Rules: Procedural Politicking in the Bureaucracy, Rachel Potter examines agency strategies for coping with presidential, congressional, and judicial review of their proposed rules. Scholars have long thought that agencies substantively moderate their rules to anticipate concerns likely to be raised in the course of the political process and subsequent litigation. Prof. Potter […]
The Revenge of the Enacting Coalition, by Stuart Shapiro
The question of how political actors can overcome the principal-agent problem and “control” bureaucratic decisions has long fascinated political scientists. In 1987, Matthew McCubbins, Roger Noll, and Barry Weingast (often referred to as “McNollgast”) put forth an argument regarding the use of procedures by legislatures to constrain bureaucratic behavior. They maintained that by requiring agencies […]
Bending the Discipline, by Andrew Rudalevige
I come to Rachel Potter’s Bending the Rules as a longtime member and sometime officer of the American Political Science Association’s organized section on Presidents and Executive Politics. When I joined that group back in the late ‘90s, it was known as the Presidency Research Group — and that intervening rebranding usefully illustrates the way […]