Let me begin by apologizing for the delay and by thanking the JREG crew and, of course, Chris Walker, for hosting this symposium and putting together a remarkable roster of essayists. The breadth and depth of the essays are a testament to the strength and vitality of the administrative law community. What’s more, they reflect […]
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 […]
If the Supreme Court decides in Lucia v. SEC that the SEC’s administrative law judges are officers, what are the implications on other cases at the SEC (or similarly situated agencies)? The effect will likely differ depending on whether other cases have become final or are still pending before the agency or a court. Here, […]
In February, I submitted an amicus brief to the Supreme Court in the case Lucia v. SEC, arguing that the original public meaning of the term “Officer(s) of the United States” referred to any government employee exercising non-negligible federal power. While I submitted the brief on behalf of a fifteen corpus linguistics scholars, in a […]
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 […]
Jon Michaels’ new book is a masterful blend of important and fascinating subjects, including the constitutional character of administrative law, superstatute theory, privatization, and procedure. It’s a fun read, too, and a must for anyone interested in a fresh perspective on the perils of privatization! In this post, however, I’m going to focus on some discrete details of […]
There are a number of ways to be unhappy about the federal administrative state we have today. One is straightforwardly libertarian. The administrative state allows substantial, systematic interference with private ordering in a way that Congress, acting alone could not (and should not even try). Another way to be unhappy about the federal administrative state […]
Jon D. Michaels’s new book, Constitutional Coup: Privatization’s Threat to the American Republic, offers a creative and—in my view—persuasive defense of the modern administrative state. I agree with Michaels that the tripartite allocation of authority among agency leaders, civil servants, and federal courts endows the administrative state with a measure of democratic legitimacy while also […]
Jon Michaels’ imaginative, insightful book portrays the administrative state in a new and thought-provoking light. He argues that the modern arrangement of agency leaders, civil servants, and civil society—“the administrative separation of powers”—recreates the internally rivalrous, tripartite structure that he sees as central to the federal constitutional design. And he makes an impassioned call that […]
There are already so many thorough analyses, illustrative applications, and thoughtful extrapolations of Jon Michaels’s provocative thesis, it took some time to decide where anything more might be usefully contributed. It is, I think, at the conceptual role “privatization” plays in Constitutional Coup’s core argument. The threat privatization poses to our fundamental constitutional order, according […]
I have long admired Jon Michaels’ work on separation of powers and government privatization, so I was thrilled to learn he had further synthesized these strands of his research in a book-length treatment: Constitutional Coup: Privatization’s Threat to the American Republic. And I’m excited we’re hosting this symposium on the book here at the Notice and […]
Jon Michaels has written an important book — and I say that even though I suspect that he and I disagree about many things! Although the administrative state has value, it also “has its share of problems.” For instance, the federal government sometimes overreaches in “ominous” and even “crushing” ways. Like the Chief Justice, I’m […]
This week, the Notice and Comment blog is hosting a web symposium on Jon Michaels’s book, Constitutional Coup: Privatization’s Threat to the American Republic. In the years leading up to this book, Michaels, who is a Professor of Law at UCLA Law School, has written extensively and thoughtfully on administrative law, constitutional structure, and the […]
It’s no secret that agencies communicate with the public. Nor is it a secret that the public often listens. It is worth thinking about, however, why the public listens. Sometimes, of course, it is a not a mystery why what an agency says is important. Imagine, for instance, that an agency has authority to waive […]
The Administrative Procedure Act and the question of judicial deference to agency action may be at the center of the typical Ad Law course syllabus. But they are far from the main topics in the story of How Agencies Communicate uncovered in this symposium. Rather than studiously following the notice and comment process to produce […]