Author Archives: Jennifer Mascott

Conclusion: Lucia v. SEC Symposium on the Appointments Clause

by Jennifer Mascott — Monday, Apr. 16, 2018@jennmascott

And . . . that’s a wrap. Thank you to the many commentators who participated in the Notice & Comment symposium over the past two weeks regarding the Supreme Court’s upcoming consideration of the Appointments Clause in Lucia v. SEC. The Court will hear oral argument in the case on Monday, April 23. In Lucia, […]

Appointments Clause Symposium on Lucia v. SEC: Are SEC ALJs “Officers of the United States”?

by Jennifer Mascott — Monday, Apr. 2, 2018@jennmascott

Starting today, for the next two weeks the Notice & Comment blog will run a symposium addressing the Supreme Court’s upcoming consideration of the constitutionality of hiring procedures for administrative law judges in the Securities and Exchange Commission. On Monday, April 23, the Supreme Court will hear oral argument in Lucia v. SEC, which raises […]

Missing History in the Court-Appointed Amicus Brief in Lucia v. SEC

by Jennifer Mascott — Wednesday, Mar. 28, 2018@jennmascott

This week the amicus appointed to advocate for the lower-court judgment in Lucia v. SEC filed his brief. The case addresses whether administrative law judges in the SEC are Article II “Officers of the United States” subject to the Constitution’s Appointments Clause requirements. U.S. Const. art. II, § 2. Court-appointed amicus, Mr. Metlitsky, technically supports […]

Upcoming Symposium, 4/2-4/13: The Supreme Court’s Consideration of Whether SEC ALJs are “Officers” Subject to Appointments Clause Requirements (Lucia v. SEC)

by Jennifer Mascott — Monday, Mar. 26, 2018@jennmascott

Regular readers of this blog may have been following along with us here at “Notice and Comment” as we have reported on the twists and turns of litigation challenging the constitutionality of hiring procedures for administrative law judges in the Securities and Exchange Commission. On April 23, the litigation’s fascinating path will culminate in Supreme […]

The Alternative Separation of Powers in Constitutional Coup

by Jennifer Mascott — Friday, Mar. 9, 2018@jennmascott

I am honored to have the chance to review Jon Michaels’s engaging, brilliantly written, and insightful work. Constitutional Coup is a very enjoyable read, chock-full of creative word pictures like Michaels’s description of the “torch and pitchfork crowd” out to get the “Nanny State.” As Jeff Pojanowski and others have observed, the book is thought-provoking […]

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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, […]

New Government Position on the SEC’s ALJs: They Are Article II “Officers”

by Jennifer Mascott — Wednesday, Nov. 29, 2017@jennmascott

This afternoon the Government filed its long-awaited brief in Lucia v. SEC. (Well, at least long-awaited by those of us who geek out on the Appointments Clause.) As readers of this blog likely will remember, over the past 16 months a circuit split developed, disappeared, and then reappeared as the Tenth Circuit and D.C. Circuit […]

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Will the Supreme Court Revisit Deference Doctrines This Term?

by Jennifer Mascott — Friday, Oct. 6, 2017@jennmascott

Yesterday in his Supreme Court Relist Watch, John Elwood highlighted the Supreme Court’s unusual action this past summer on a cert petition regarding Chevron deference. Mr. Elwood observed that the Supreme Court relisted—again— Scenic America, Inc. v. Department of Transportation, 16-739, which garnered attention this summer when the court called for a reply . . […]

Register to Attend a Discussion of “The Year Ahead: Regulation in the Supreme Court and the Circuits”

by Jennifer Mascott — Tuesday, Sept. 12, 2017@jennmascott

On Friday, September 29, the Hoover Institution and the Antonin Scalia Law School’s Center for the Study of the Administrative State will host a lunchtime panel discussion on circuit court and Supreme Court litigation in the coming Term that may impact the landscape of administrative law.  With the advent of Justice Gorsuch to the Supreme […]

If ALJs are “Officers,” Who Should Appoint Them?

by Jennifer Mascott — Tuesday, June 27, 2017@jennmascott

As Aaron Nielson has reported on this blog, yesterday afternoon the D.C. Circuit issued a judgment in the SEC ALJ case. The judgment essentially reinstates the D.C. Circuit’s earlier panel decision finding that the ALJs are not Article II “officers” subject to the Constitution’s Appointments Clause requirements. The judgment thus also reinstates the D.C. Circuit’s […]

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