Posts Tagged ‘administrative law’

“Administrative Law Judges Are Unconstitutional”

Administrative law judges are executive-branch as distinct from judicial officers, yet the President has no power to remove them; at the Securities and Exchange Commission and many other federal agencies, they are themselves employed by the agency on whose enforcement cases they must render quasi-judicial rulings. In recent years federal judges have expressed unease about whether assigning ALJs this particular combination of adjudicatory powers and institutional affiliations is entirely consistent with the U.S. Constitution, and now a Cato Institute amicus brief, in the D.C. Circuit case of Timbervest LLC v. Securities and Exchange Commission, urges courts to take the next logical step and rule that it is not. [Ilya Shapiro and Thaya Brook Knight; earlier here, here, here here, etc.]

April 20 roundup

Scalia’s change of mind on agency deference

Initially, Justice Antonin Scalia supported the doctrine (Auer/Seminole Rock) by which courts defer to administrative agencies in interpreting the scope of their regulations. Toward the end of his life, however, he changed his mind. And in that change lies a lesson about the tension between the dangers of arbitrariness and abdication in the judiciary, and how the Constitution goes about addressing that tension [Evan Bernick; earlier]

The biggest cases, without Scalia

This year’s eight-member court may reach different outcomes than had formerly been expected in Friedrichs v. California Teachers Association, the public employee union dues case; the Obamacare religious exemption cases including Little Sisters of the Poor v. Burwell; and Fisher v. Texas, the affirmative action case, among others. Also diminished: the chance that the Court will overturn its doctrine of “Auer deference” to agencies’ interpretations of their own regulations, a doctrine laid out by Scalia himself which he later came to reconsider [Adam Gustafson, Washington Examiner] Plus the trio of class action cases, the challenge to the EPA’s coal-throttling Clean Power Plan, and much more [Daniel Fisher, Forbes] (& welcome Wall Street Journal Law Blog readers)

“Time to Rein in Judicial Deference to Executive Agencies”

The Seventh Circuit case we wrote about in October, on whether a federal agency is entitled to deference in how it interprets the legal scope of its own regulations, is now before the U.S. Supreme Court on a petition for certiorari review. Ilya Shapiro and Randal John Meyer explain why the Cato Institute has joined a brief urging the Court to take up the case of United Student Aid Funds v. Bible. [Cato at Liberty; more on so-called Auer deference]

Justice Scalia’s jurisprudence

Scalia for the general reader: my new piece briefly explains his textualism, originalism, and rules jurisprudence [American Media Institute Newswire, syndicated] And in a new Cato Podcast, Caleb Brown interviews Tim Lynch and me about the Justice’s legacy in the areas of criminal law, regulation, and administrative law:

In his long battle against vagueness in defining crimes, Justice Antonin Scalia was a true hero of liberty and the rule of law. Harvey Silverglate discusses that here.

December 23 roundup

Supreme Court and constitutional law roundup

Free speech roundup

  • Venezuela files suit in U.S. against American website, Dolar Today, that is critical of its currency policies [George Selgin]
  • Michigan: “Felony prosecution for distributing pro-jury-nullification leaflets outside courthouse” [Eugene Volokh, earlier here, here, etc.] More: Judge tosses Denver D.A.’s attempt to jail jury nullification pamphleteers [Jacob Sullum, earlier]
  • Federal agencies should not get to decide for themselves whether they’re violating the First Amendment [Ilya Shapiro, Cato on cert petition in POM Wonderful v. Federal Trade Commission]
  • “After all, a wall can be built around many things, but not around the First Amendment.” One election lawyer’s response to cease/desist letter from Donald Trump [Chris Cillizza/Washington Post, letter courtesy Politico]
  • Court in Turkey considering a doctor’s comparison of Turkish President Erdogan with “Lord of Rings” character Gollum, and the results are preciousss [Sarah McLaughlin, Popehat]
  • Update on climatologist Michael Mann’s defamation suit, still in progress [Jonathan Adler, earlier]
  • Attacks on the right to speak one’s mind are multiplying. Would better civics education help? [George Leef, Forbes]

EEOC’s use of “administrative subpoenas”

No warrant needed: “administrative subpoenas” or “civil enforcement demands” allow the Equal Employment Opportunity Commission and other federal agencies to demand “everything from Social Security numbers to medical records without a judge’s prior approval, so long as the information is “relevant” to the agency’s work.” Courts have allowed the maneuver although it bypasses the protections of the Fourth and Fifth Amendments. [Kathryn Watson, Daily Caller]