Category Archives: Symposium on Lucia v. SEC

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, […]

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 […]

The SEC’s Improper Subdelegation (Statutory, not Constitutional)

by Jennifer Nou — Wednesday, Apr. 11, 2018@Jennifer_Nou

The Securities and Exchange Commission (SEC), like any busy group of officials, can’t do everything itself. It has to delegate tasks. Not only is delegation inevitable, it is often wise. Delegating to others can promote agency expertise; it can preserve Commission resources for higher priorities. At the same time, delegation has its pathologies. It can […]

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 […]

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, […]