When the Senate lowered the threshold for nominees to a simple majority, it kept the 30-hour requirement to overcome a filibuster. While the Republican Senate has been willing to devote 30 hours to overcome filibusters on nominees to more important positions like cabinet secretary and circuit court judge, the floor time has added up quickly. […]

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such […]

Neither Justice Breyer nor Justice Gorsuch are fond of the “mandatory,” two-step approach to Chevron. Shortly after the D.C. Circuit molded the two-step standard from Justice Stevens’s opinion, then-Judge Breyer argued that a mandatory version of Chevron would result in a “greater abdication of responsibility to interpret the law than seems wise.” Since joining the […]

Today the Supreme Court will hear argument in Lucia v. SEC about whether Securities and Exchange Commission administrative law judges (ALJs) exercise “significant authority” and thus are subject to the Constitution’s Appointments Clause requirements. The straightforward arguments from the government and the petitioner, showing how ALJs are “officers” under Supreme Court precedent, history, and the […]

On Monday, the Supreme Court will hear oral arguments in the case Lucia v. SEC. The question presented is whether administrative law judges of the Security Exchange Commission should be considered “Officers of the United States” subject to the Appointments Clause of the U.S. Constitution. In a previous post, I suggested that the Court should […]