Author Archives: Guest Blogger

Confessions of an Administrative Law Pollyanna, by Richard J. Pierce Jr.

by Guest Blogger — Tuesday, Jan. 16, 2018

Viewed from the perspective of a student preparing to take a final exam in administrative law, the doctrinal status quo with respect to judicial review of agency actions is a confused mess. Courts apply, and scholars debate, at least two versions of Skidmore, at least five versions of Chevron, and a constantly evolving version of […]

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Against Cutting the President’s Purse Strings, by Zach Price

by Guest Blogger — Saturday, Jan. 6, 2018

As Chris Walker generously highlighted in an earlier post, I have written a forthcoming article on a separation-of-powers question I think has received insufficient attention: the extent of Congress’s authority to control executive constitutional authorities through restricted or conditional appropriations. For those interested, I have summarized my main arguments in prior posts on the Take […]

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OIRA’s Lineage and Enforcement Responsibilities, by Jim Tozzi

by Guest Blogger — Tuesday, Jan. 2, 2018

Professor Andrew Rudalevige of Bowdoin College has written two articles on the creation of the Office of Information and Regulatory Affairs (OIRA): one just published in the 2018 Winter Edition of National Affairs (Number 34) and the other an earlier and more-detailed presentation published by the Midwest Political Science Association. Professor Rudalevige concludes: Presidential authority […]

The CFTC and SEC Are Demanding Unconstitutional Speech Bans in Their Settlement Agreements, by James Valvo

by Guest Blogger — Monday, Dec. 4, 2017

Many federal agencies have the authority to bring civil complaints against individuals accused of violating applicable statues or regulations. Those agencies also have the authority to enter into settlement agreements with the accused defendants. The Commodity Futures Trading Commission (“CFTC”) and Securities and Exchange Commission (“SEC”) both have a policy of requiring a provision in […]

Chenery II Poses No Threat to Liberty, by Richard J. Pierce Jr.

by Guest Blogger — Monday, Nov. 27, 2017

On November 24, Aaron Nielson wrote a blog in which he quoted White House Counsel Don McGahn as saying that the Supreme Court’s opinion in SEC v. Chenery, 332 U.S. 194 (1947) (Chenery II) announces “a doctrine that has empowered agencies . . . to announce new rules during enforcement actions without any fair notice.” […]

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Forgetting Appointments—Can the CFPB director appoint the deputy director in the first place?, by Kent Barnett

by Guest Blogger — Monday, Nov. 27, 2017

Who’s the legal acting director of the Consumer Financial Protection Bureau? Is it Leandra English, whom former director Richard Cordray appointed under his statutory authority as deputy director? Or is Mick Mulvaney, whom President Trump has appointed under the Federal Vacancies Reform Act (FVRA)? It’s a difficult legal question that only administrative-law scholars could love. […]

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More Thoughts on the CFPB Puzzle: President Trump Can Select Someone to Run the CFPB Only if the Senate Has an Opportunity to Confirm, by Nina A. Mendelson

by Guest Blogger — Monday, Nov. 27, 2017

On Friday, November 24, Consumer Financial Protection Bureau Director Richard Cordray named Leandra English, the longtime CFPB Chief of Staff, to the post of Deputy Director. Based on legislation specific to the CFPB, that put her in a position to serve as Acting Director upon his departure. Cordray then resigned. A few hours after Cordray […]

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PTAB, Patents, and the Constitution, by Philip Hamburger

by Guest Blogger — Sunday, Nov. 26, 2017

Tomorrow, the Supreme Court will hear arguments in Oil States vs. Greene’s Energy Group, et al. on whether the Patent and Trademark Office, acting through the Patent and Trial Appeal Board (PTAB), can decide the validity of existing patents. The question, in particular, is whether the PTAB is unconstitutionally extinguishing private property rights in a […]

Class Action Not Withstanding, the SEC’s Use of Disgorgement Is Here To Stay, by Daniel B. Listwa

by Guest Blogger — Thursday, Nov. 23, 2017

This past summer, in Kokesh v. SEC, the Court scaled back the SEC’s power to recover the profits earned by defendants’ illegal activities, holding that judicial disgorgement brought by the agency constitutes a penalty for the purpose of the 5-year statute of limitations in 28 U.S.C. § 2462. While the holding attracted some headlines, a […]

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