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 […]
Lucia v. SEC seems set to give some content to Buckley v. Valeo’s cryptic distinction: while officers exercise “significant authority under the laws of the United States,” employees are just “lesser functionaries.” Since Buckley, the Court expanded its analysis again in Freytag, but the employee-officer distinction still remains ill-defined. What’s so strange about both Freytag […]
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 […]
V. Aaron Nielson is always among the most cheerful and helpful of critics. In his review (“Pretend Privatization”), Aaron focuses on what he calls pretend privatization, which he defines in terms of “situations in which the government tries to avoid being labeled as the government, even though it still wants to exercise the powers of […]
A key question on every adlaw geek’s mind is how the Supreme Court’s decision in Lucia might affect the process for appointing Administrative Law Judges (ALJs). What if the Supreme Court holds that ALJs are inferior officers who must be appointed in compliance with Article II’s Appointments Clause? What implications, if any, would this have for […]
SEC v. Lucia is an extraordinary case in several respects. First, it is an Appointments Clause case. When I worked in the Office of Legal Counsel (from 1993-1997), we handled Appointments Clause issues on an at least weekly basis. In striking contrast, the Supreme Court has only rarely opined on the meaning of the Clause. […]
Let me begin with a confession: I’m not an expert on the meaning of the Appointments Clause. Of course, because I teach administrative law, I know the basics — I’ve read the leading cases and even some law review articles. Even so, I approach this symposium as a layman, not an expert. Yet even as […]
The Supreme Court is poised to hear arguments in Raymond J. Lucia v. SEC on Monday, April 23, 2018. The sole issue for which cert was granted is whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC) are officers of the United States within the meaning of the Federal Constitution’s appointments clause. […]
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 […]