Author Archives: Jennifer Mascott

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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OIRA Administrator Nominee Professor Rao Sails Through her Confirmation Hearing

by Jennifer Mascott — Saturday, June 10, 2017@jennmascott

This past Wednesday the U.S. Senate Committee on Homeland Security and Governmental Affairs held a hearing for three nominees including Professor Neomi Rao of George Mason’s Antonin Scalia Law School.  As this blog has reported, Rao is the nominee to be Administrator of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management […]

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D.C. Circuit’s Double-Header on Article II

by Jennifer Mascott — Friday, May 26, 2017@jennmascott

This week the D.C. Circuit sitting en banc heard arguments in its blockbuster (by Washington standards) double-header featuring the appointments and removal implications of Article II. In a nutshell, the cases address whether Article II’s transparency and accountability requirements mean (i) a single head of an executive branch agency must be removable at will (PHH […]

Federal Circuit Rules that Expedited Veterans Affairs Removal Procedures Create an Appointments Clause Violation

by Jennifer Mascott — Monday, May 15, 2017@jennmascott

This past week the Federal Circuit issued a significant decision* interpreting the Appointments Clause in Article II, Section 2 of the Constitution. In Helman v. Department of Veterans Affairs, the court held unconstitutional part of Congress’s new statutory scheme for expedited removal of senior executives in the Veterans Affairs Department (DVA). In the court’s view, […]

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