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 fifth post in a symposium on the decisional independence of administrative adjudicators. For other posts in the series, click here. As Professor Michael Rappaport and other scholars have observed, agencies currently maintain an excessive degree of power and discretion to internally adjudicate agency enforcement actions. Professor Rappaport has proposed the creation of […]
On June 17, a powerhouse lineup of former White House and DOJ officials will discuss one of the most pressing issues in presidential administration of late – is the nation’s chief law enforcement, and law interpretation, agency run most soundly if it is subordinate to the Chief Executive or independent? The Federalism & Separation of […]
Next week, several current and former bloggers from these pages will participate in the annual Executive Branch Review conference. This year the conference will address legal issues related to the next four years in administrative agencies and the executive branch writ large. The online conference will start at 11:00 a.m. each day from Monday, May […]
*This is the sixth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. Adrian Vermeule and Cass Sunstein’s recent feat in Law & Leviathan is thought-provoking and builds on their past prolific contributions to administrative law. The […]
This is an atypical post for me. Usually I blog here as an academic—or, more precisely, as just another Ad Law nerd. But today I thought I’d take a stab at writing in a different capacity—as former law clerk to a beloved former boss. In 2006, Judge Brett Kavanaugh hired me as his first law […]
Amidst the flurry of administrative–law–related opinions that the Supreme Court handed down at the end of last week, an intriguing separation-of-powers-related opinion from the Southern District of New York (SDNY) received comparatively little immediate attention. Last Thursday, Judge Loretta Preska ruled that the Consumer Finance Protection Bureau (CFPB) cannot bring an enforcement action in district […]
Yesterday the Supreme Court ruled in Lucia v. SEC, evaluating whether the Securities and Exchange Commission had used improper methods to hire its administrative law judges. A fairly lopsided 7-2 margin of justices concluded that it had. Standing alone, Justice Stephen Breyer found that the SEC had committed a statutory violation by improperly delegating appointments […]
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 […]
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, […]
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 […]
I am honored to have the chance to review Jon Michaels’s engaging, brilliantly written, and insightful work. Constitutional Coup is a very enjoyable read, chock-full of creative word pictures like Michaels’s description of the “torch and pitchfork crowd” out to get the “Nanny State.” As Jeff Pojanowski and others have observed, the book is thought-provoking […]
In April, the Supreme Court will hear oral argument in Lucia v. SEC to consider whether administrative law judges (ALJs) in the Securities and Exchange Commission (SEC) are “Officers of the United States.” If they are, the ALJs are subject to the Appointments Clause, requiring them to be appointed by the President, a department head, […]