Taft, Frankfurter, and the First Presidential For-Cause Removal

In the fall of 1912—while one of the most consequential presidential campaigns in United States history raged around them— William Howard Taft, Felix Frankfurter, and a handful of officials within the federal government initiated a process to remove two members of the Board of General Appraisers (“Board”) for inefficiency, neglect of duty, and malfeasance in office. The process culminated in President Taft’s for-cause dismissal of the two members, Thaddeus Sharretts and Roy Chamberlain, on the very last day that he served as President, after he received a report recommending their firing from a “committee of inquiry” that included Frankfurter

The Attorney General and Early Appointments Clause Practice

This Article proceeds as follows. In Part I, I provide an overview of the Appointments Clause and the officer-employee line as it currently stands in caselaw and in executive branch practice. I also summarize the Appointments Clause practices of the First Congress. In Part II, I address the opinions of the Attorneys General, and their attempt to rationalize and to explain the statutes enacted by the First Congress and the appointments practices of the nation. In Part III, I derive some implications and conclusions, generally for the Appointments Clause and specifically for the Administrative Law Judge controversy that is currently the subject of a Supreme Court case in Lucia

Debs and the Federal Equity Jurisdiction

The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that prompted responses in the political platforms of major parties, presidential addresses, and enormous academic commentary. In the early twentieth century, Congress enacted several pieces of labor legislation that reduced Debs’s importance in the specific context of strikes. But in other contexts, the question whether the United States can bring suit in equity remains disputed to this day. The United States has expressly invoked, or implicitly relied on, Debs in some of the most high-profile cases in recent years, including United States v. Texas. This Article explains the equitable principles at work in Debs and shows how these principles still have a normative basis today. Collecting materials from traditional equity practice and historic treatments of Debs that have escaped the attention of the recent academic literature, this Article especially considers the connection that the Debs Court draws between equitable relief and a proprietary interest. It shows how the equity-property connection works as an empowering and limiting principle for the ability of the United States to bring a suit in equity. And it offers guidance to the federal courts by explaining and defending the traditional contours of their equity jurisdiction

Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference. Topics include: History of Seminole Rock Empirical Examinations of Seminole Rock Understanding Seminole Rock Within Agencies Understanding Seminole Rock as Applied to Tax, Environmental Law, and Criminal Sentencing Why Seminole Rock Matters Should the Supreme Court Overrule Seminole Rock? Would Overruling Seminole Rock Have Unintended Consequences? What Might the Supreme Court Do? What Might Congress Do? The Future of Seminole Roc

The Path of Administrative Law Remedies

The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one. This Essay traces the history of the statutory term “set aside” from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA. During this era, Congress repeatedly used the term “set aside” in agency review statutes. This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created by the law of judgments and equity. The traditional approach limited the ability of a stranger to litigation to enforce a judgment previously obtained by another, even if the stranger proceeded on the same legal theory. The Essay explains how that traditional approach continues to apply in challenges to agency “adjudications” and offers some reasons for why the same approach ought to apply in challenges to those agency actions that are categorized as “rulemakings.

Marbury v. Madison and the Concept of Judicial Deference

Part I summarizes Marbury’s statutory analysis. Part II picks up that summary and analyzes each of the three types of “deference” discussed in the Marbury opinion. Part III provides some concluding thoughts

The Path of Administrative Law Remedies

The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one. This Essay traces the history of the statutory term “set aside” from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA. During this era, Congress repeatedly used the term “set aside” in agency review statutes. This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created by the law of judgments and equity. The traditional approach limited the ability of a stranger to litigation to enforce a judgment previously obtained by another, even if the stranger proceeded on the same legal theory. The Essay explains how that traditional approach continues to apply in challenges to agency “adjudications” and offers some reasons for why the same approach ought to apply in challenges to those agency actions that are categorized as “rulemakings.