In recent years, several posts on this blog have analyzed how individual judges on President Trump’s Supreme Court shortlist approach questions of administrative law. (See here and here.) To our knowledge, however, no one has written about one of the leading contenders—Judge Raymond Kethledge. This two-part series attempts to fill that gap. The first post […]
In my April 9 guest blogpost, “Auer Deference with a Foreign Twist,” I discussed the issues before the Court in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. The case involved a federal class action antitrust and price-fixing jury trial verdict for $147 million against two Chinese vitamin C manufacturers that was overturned […]
Applying deference under Bowles v. Seminole Rock, 325 U.S. 410 (1945), courts have deferred to agency interpretations of agency rules for decades. But a recent concern that the doctrine permits agencies to combine the powers of lawmaking and law interpretation has prompted Congress and the courts to consider reform. In a new Essay, forthcoming in […]
San Francisco City Attorney Dennis Herrera filed a lawsuit[i] on April 5, 2018, challenging U.S. Attorney General Jeff Sessions’s repeal of six Department of Justice (DOJ) civil rights guidance documents. The lawsuit argues that Sessions rescinded these civil rights protections for marginalized communities without meaningful explanation, in violation of the Administrative Procedure Act (APA). *** […]
The Supreme Court appears to be poised to uphold the so-called Travel Ban at issue in Trump v. Hawaii. At the oral argument, some of the justices seemed concerned about the Court second-guessing an order that came from the President himself and that concerned national security. Neither of those factors, however, should hinder the Court […]
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 […]
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 […]
As one who has studied the role of impartial institutions for the purpose of resolving electoral disputes—and has advocated the creation of special nonpartisan tribunals in high-profile cases (like Minnesota’s Coleman-Franken recount in 2008)—I wonder whether the appointment of a special master, as Judge Kimba Wood is reportedly considering, is appropriate for the review of the material seized from […]
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 […]
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 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 […]
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 […]
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 […]
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, […]