Tag Archives: Lucia v SEC

Recommendations, Recommitted Actions, and Revised Rules (ACUS Update)

by Emily Bremer — Saturday, July 7, 2018@emilysbremer

If you’re looking for a little light poolside reading, check out the three new recommendations and other actions taken by ACUS at its 69th Plenary session last month.  The recommendations address the Paperwork Reduction Act, severability in judicial review of agency rulemaking, and electronic case management in adjudication.  In addition to adopting these recommendations, the Assembly recommitted […]

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 […]

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, […]

An Empirical Study of the Record of the SEC’s ALJs Shows That They Are Unbiased and Accountable, by David Zaring

by Guest Blogger — Friday, Apr. 6, 2018

Lucia v. SEC is technically about the Appointments Clause, but really it is about unfairness.  Can defendants get a fair shake in ALJ proceedings?  If they can’t, there may be a reason for the Supreme Court to do something about ALJs.  But if they can, then twisting and turning doctrine to undo this pillar of […]

The Untold Story of Lucia v. SEC: The Constitutionality of Agency Adjudications, by Ilan Wurman

by Guest Blogger — Friday, Apr. 6, 2018

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 […]

Notice and Comment Online Symposium on Lucia v. SEC, Contribution by Richard J. Pierce, Jr.

by Guest Blogger — Thursday, Apr. 5, 2018

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 […]