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 […]
In this symposium on Lucia v. SEC, most of the posts have, quite rightly, discussed what Lucia is actually about—whether ALJs are inferior officers for purposes of the appointments clause to the Constitution. And although the question is not before the Court, if they are inferior officers then that raises intriguing questions about for-cause removal […]
Four colleagues and I drafted an amicus brief on behalf of neither party that we filed on behalf of 29 administrative law scholars in Lucia v. SEC. The brief took no position on whether Administrative Law Judges (ALJs) are employees or inferior officers. It urged the Court to issue an opinion that respects the decision […]
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 […]
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 […]
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 […]
Anyone interested in preserving the independence of Administrative Law Judges (ALJs) should be alarmed at Solicitor General Neal Francisco’s brief (nominally) on behalf of the SEC in the case pending at the Supreme Court, Raymond J. Lucia Petitioners v. The Securities and Exchange Commission. I say “nominally” because the front page of the brief itself […]
Earlier this month on a Friday afternoon, the Securities and Exchange Commission quietly issued an extraordinary administrative order. In one fell swoop, the SEC unconditionally abandoned more than 40 enforcement cases the agency had previously spent untold staff resources prosecuting over the past decade. In essence, the agency largely shut down what I’ve previously called its “Hotel California” adjudication system. […]
The latest variant of the epidemic of constitutional challenges to federal administrative adjudicators was blocked by the Court of Appeals for the Federal Circuit (CAFC) when it rebuffed a series of arguments challenging the appointment of Administrative Judges (AJs) of the Merit Systems Protection Board (MSPB). McIntosh v. Department of Defense, 53 F. 4th 630 […]
December 11, 2022, marked the centennial of the U.S. Supreme Court’s landmark regulatory takings decision—Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). Readers familiar with land-use law are likely well-acquainted with the case most often identified as the beginning of the “regulatory takings” doctrine. But it takes some digging to fully appreciate Pennsylvania Coal’s consequential—though […]
Often criminal law doctrines are viewed as separate and distinct from the regulatory state or general structural constitutional principles. But this Term the Court has before it several significant petitions that raise questions related to structural constitutional protections in the context of criminal law. Professor Steve Vladeck of Texas Law School and I discuss two […]
*This is the ninth post in a symposium on the decisional independence of administrative adjudicators. For other posts in the series, click here. There is a growing concern in administrative law circles, and especially among administrative law judges and other agency adjudicators, that the decisional independence of agency adjudicators is increasingly being threatened. At least formally, […]
*This is the eighth post in a symposium on the decisional independence of administrative adjudicators. For other posts in the series, click here. **The following article, aside from including recent updates, was published on this blog on December 23, 2019. To Justice Breyer’s chagrin, the Court in Lucia v. SEC and Free Enterprise Fund v. PCAOB […]
*This is the sixth post in a symposium on the decisional independence of administrative adjudicators. For other posts in the series, click here. United States v. Arthrex is an Appointments Clause case that reads like a Vesting Clause case. Its shifting analytical frames and splintered alliances leave an important question unresolved: will the Court now […]
Last fall, in Collins v. Yellen, the U.S. Supreme Court invited me to brief and argue in defense of the constitutionality of the Federal Housing Finance Agency. By statute, the president can only fire the head of the FHFA “for cause.” The question in Collins was whether that provision unconstitutionally limits the president’s removal power. […]