Amicus Briefs

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Separation of Powers

March 24, 2022

Courts shouldn’t let administrative agencies determine the scope of ambiguous criminal laws.

Cargill v. Garland

Courts shouldn't let administrative agencies determine the scope of ambiguous criminal laws. ...

February 17, 2021

To ensure accountability, powerful government officials must be appointed by the President and confirmed by the Senate.

United States v. Arthrex, Inc

Administrative Patent Judges (APJs) hear administrative trials concerning patent disputes and, in the process, exercise powers similar to those of federal judges. APJs may issue subpoenas to require testimony and documentation, rule on the parties' evidentiary arguments, and issue thousands of final decisions each year—decisions that bind the pr ...

February 16, 2021

Constitutional challenges must be heard by courts of law

Carr v. Saul & Davis v. Saul

The ALJ himself cannot resolve that question. Therefore, does a challenger still have to raise the issue to the ALJ in the first instance, or may a challenger wait until the matter goes to federal court? Courts have often held that, if someone does not raise an issue during an ALJ proceeding—even a constitutional issue ...

September 23, 2020

Courts should give relief to those hurt by illegal agency actions

Collins v. Yellen

After the mortgage crisis in the early 2000s, Congress created the Federal Housing Finance Agency (FHFA) to regulate federal home loans. The FHFA is headed by a single director, who serves for a period of five years and cannot be removed by the President except for cause. Exercising its vast powers, the FHFA adopted a regulation that prevented the ...

December 09, 2019

Constitutional Violations Require Meaningful Remedies

Aurelius Investment, LLC. v. Puerto Rico

This case asks whether Congress had the authority to create a board to bring bankruptcy-like proceedings on behalf of the Commonwealth of Puerto Rico. The board's membership is appointed without Senate confirmation even though the board exercises extremely broad authority. The First Circuit found that these appointments violated the Constitution's ...

December 09, 2019

Regulatory Agencies Must be Accountable to the President

Seila Law, LLC v. Consumer Financial Protection Bureau

Can Congress restrict the President's power to remove high-level officials in the Executive Branch? If so, as some lower courts have held, then the President cannot discharge his constitutional obligation to ensure that the "Laws are faithfully executed." To meet this obligation, the President must have sufficient control over his administration— ...

May 31, 2018

Congress must do its own job—make laws

Gundy v. United States

The Constitution gives Congress the power to make laws, but not to delegate that power to the Executive Branch. Doing so allows unelected, unaccountable bureaucrats to make rules in violation of the Non-Delegation doctrine. In Gundy, the U.S. Supreme Court will review whether Congress violated the Non-Delegation doctrine by empowering the Attorney ...

May 14, 2018

Supreme Court sports gambling decision is win for federalism

Murphy v. National Collegiate Athletic Association

A federal law called the Professional and Amateur Sports Protection Act (PASPA) forbade states from legalizing sports gambling. When New Jersey repealed some of its prohibitions against sports gambling, several sports leagues sued, claiming the state violated PASPA, even if the state did not license or permit the activity. The Third Circuit agreed ...

February 27, 2018

Administrative concentration of judge-jury-executioner violates the Constitution

Lucia v. Securities and Exchange Commission

In 2012, the Securities and Exchange Commission charged Raymond Lucia and his former investment company with violating federal securities laws and regulations. He was prosecuted in an administrative enforcement action overseen by an Administrative Law Judge employed by the SEC. The ALJ permanently barred Mr. Lucia from working as an investment advi ...