Law Commons^™

Administrative Law Judges And The Erosion Of The Administrative State: Why Jarkesy May Be The Straw That Breaks The Camel's Back, Nicholas D'Addio

Catholic University Law Review

The Trump-era unitary executive movement sought to expand presidential

power and shrink the influence of the administrative state through deregulation.

This movement ripples into the present moment, as Trump’s overhaul of the

federal judiciary installed a comprehensive system to delegitimize

administrative agency action— a system that is certain to endure. The

independence and role of administrative law judges (ALJs) has proven a key

target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities

and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause

removal protections of SEC ALJs violated the Take Care Clause of Article …

A Look Back In Time: Analyzing The Success And Value Of The 2014 Amendments To Rule 2a-7 And Reporting On Form N-Cr In Light Of The March 2020 Market Events, Jocelyn Near

Catholic University Law Review

Money market funds have frequently been a target of regulation by the Securities and Exchange Commission (“SEC”). Perhaps the most expansive regulation came as a response to the 2008 financial crisis, in which the Reserve Primary Fund “broke the buck.” The SEC’s misguided 2014 reforms exacerbated the inherent risks of money market funds, including the risk of runs and first mover advantage, particularly with the implementation of Form N-CR. Form N-CR requires a money market fund to publicly report when various events occur, including when a retail or government money market fund’s current net asset value per share deviates downward …

Toothless Trade? Implications Of The Federal Circuit’S Clearcorrect Decision For The Enforceability Of Intellectual Property Protections In Digital Trade Under Usmca, Alissa Chase

Catholic University Law Review

Digital trade is growing faster than trade in goods and services and comprises a key area for innovation and intellectual property concerns. The United States-Mexico-Canada Agreement (“USMCA”) acknowledged this development by including chapters devoted to both digital trade and intellectual property. In 2015, the Federal Circuit held that the International Trade Commission (“ITC”) does not have jurisdiction over unfairly traded digital goods. Without exclusion orders issued by the ITC, the United States lacks a powerful tool to enforce the USMCA provisions protecting intellectual property in unfairly traded digital goods. This comment explores the implications of the Federal Circuit’s 2015 ClearCorrect …

Administrative Apparition: Resurrecting The Modern Administrative State’S Legitimacy Crisis With Agency Law Analysis, Tabitha Kempf

Catholic University Law Review

There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the “administrative state,” has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though …

Heirs Of An Administration: Unlawful Executive Actions, Jerome Perez

Catholic University Law Review

The Supreme Court of the United States in DHS v. Regents on June 18, 2020, decided to stall the Trump administration from rescinding the Deferred Action for Childhood Arrivals (DACA) policy that the Obama administration created contrary to the Administrative Procedures Act (APA)––even though in 2016 the Supreme Court affirmed a preliminary injunction on the Deferred Action for Parents of Americans (DAPA) policy, which mirrors DACA. This blunder offhandedly sacrifices the Supreme Court’s reputation as nonpartisan by enlisting itself as the future arbiter of administrative issues with self-evident resolutions and deciding contrary to those resolutions to endorse a political agenda. …

Under-Enforcement Of Federal Animal Protection Laws: Agencies Abdicating Enforcement Authority, And An Outlier Eleventh Circuit ‘Serious Harm’ Rule, Rebekah Green

Catholic University Law Review

Congress enacted the Endangered Species Act, Animal Welfare Act, and the Marine Mammal Protection Act to protect and preserve endangered and threatened fish and wildlife, animals, and marine mammals. The United States Department of Agriculture (“USDA”) is the primary administrative agency in charge of regulating zoos, wildlife centers, and aquariums, yet fails to consistently enforce the Animal Welfare Act, which this Comment reviews. This means that private animal advocacy agencies are left suing zoos, wildlife centers, and aquariums under the “taking” clause of the Endangered Species Act in order to ensure animal safety and care. While most circuits agree upon …

Alternative Remedies For Undocumented Workers Left Behind In A Post-Hoffman Plastic Era, Rachel S. Steber

Catholic University Law Review

Congress enacted the National Labor Relations Act (NLRA) in 1935 in order to level the bargaining power of employees and employers to prevent burdening the flow of commerce and depressing workers’ wages. The NLRA vests the administration of promulgating the goals of the NLRA in the National Labor Relations Board (Board), broadly stating that the Board should take such affirmative action as necessary to effectuate the policies of the Act.

In 1935, however, Congress could not predict the future demographic makeup of the American workforce, and in its definition of an “employee” as covered under the NLRA, the statute makes …

Crystal Clear Vagueness: The Board Of Immigration Appeals Hampers Justice With Its Vague “Process Of Justice”, Maria Natera

Catholic University Law Review

The Immigration and Nationality Act has caused the issue of unconstitutional vagueness to become more prominent in recent years in the context of immigration law. The Act provides definitions for certain crimes that are grounds for legal immigrants to be placed in removal proceedings, with the possibility of deportation. With such severe potential consequences, it is crucial that the definitions be crystal clear on what every crime entails in order to give immigrants fair warning.

One such crime that may subject an immigrant to removal proceedings and deportation is a conviction for an “aggravated felony,” coupled with a sentence of …

Standing To Appeal At The Federal Circuit: Appellants, Appellees, And Intervenors, Matthew J. Dowd, Jonathan Stroud

Catholic University Law Review

The America Invents Act of 2011 created three administrative patent review regimes that have flooded the rechristened Patent Trial and Appeal Board with almost 7,000 new matters in just under five years. The flood of matters—primarily, inter partes reviews (IPRs)—has led to more than 1,000 appeals to the U.S. Court of Appeals for Federal Circuit from administrative proceedings, eclipsing any other forum of origin. With the flood of administrative appeals, questions of first instance on appellate standing have arisen, resulting in a handful of important panel decisions.

While the other regional Courts of Appeals have largely adopted legal tests, standards, …

Is A Delayed Result A Just Result? The Use Of Laches As An Equitable Defense To Remedial Back Pay Under The Eeoc's Sovereignty, Ruth Ann Mueller

Catholic University Law Review

The equitable defense of laches generally cannot be used against the sovereign. This broad proposition, adopted from English Courts of Equity, cements itself in United States federal case law. It is a longstanding principle that the federal government protects the public good and must be exempt from the defenses that could be brought up in a private suit. Administrative agencies bear a similar role, and exemption, when litigating as the United States on behalf of the public.

However, courts do not affirmatively restrict the use of laches against administrative agencies who may be acting on behalf of a private litigant. …

The Proper Appellate Standard Of Review For Ptab Factual Findings Made Incidental To Claim Construction, A. David Brzozowski Ii

Catholic University Law Review

The America Invents Act (AIA) represents the most significant change to U.S. patent law since the 1952 Patent Act. Since its passage, the AIA has drawn wide support from the intellectual property community, primarily due to the new post-grant opposition proceedings the Act created.

However, certain aspects of the new system created by the AIA are controversial. Specifically, judges and practitioners alike debate which standard of review courts should apply to the factual findings made by the Patent Trial and Appeals Board (PTAB) during these opposition proceedings. While the Federal Circuit has reviewed all factual findings made at the Patent …

Clearing The Air: Does Choosing Agency Deference In Security Clearance Rulings Dilute Constitutional Challenges?, Frank Russo

Catholic University Law Review

The ability to obtain a security clearance has a wide-ranging impact from job placement to questions of fitness in a presidential election. Sustaining a functional career in intelligence, national security, and many other federal fields within the United States is nearly impossible without proper security clearance. In 2016, the importance of proper clearance evolved into a national debate as each presidential candidate staked claims that their opposition should be excluded from receiving sensitive material.

This Comment begins with a detailed history of modern security clearance procedures and MSPB reviews of clearance revocations. Part I focuses on those who need security …

The Diversity Rationale For Affirmative Action In Military Contracting, Hugh B. Mcclean

Catholic University Law Review

Section 8(a) of the Small Business Act (the ‘‘8(a) program’’) is a federal contracting program that permits the government to award certain contracts to members of designated racial groups that own small businesses. Courts have denied facial challenges to the program, but have upheld challenges alleging the program is unconstitutional as applied to particular industries. As a result, the military is banned from using the program in at least one industry, and inherits significant risk when using the program in other industries. The government has never articulated a diversity rationale to justify the use of race-conscious measures in the military …

Oversight Of Oversight: A Proposal For More Effective Foia Reform, Aram A. Gavoor, Daniel Miktus

Catholic University Law Review

One of the main mechanisms by which the public can gather information about government activity is through the Freedom of Information Act (FOIA). This Article suggests that FOIA contains inconsistencies that lead to a less transparent government. Gaps and ambiguities in its language that invite and require federal agency interpretation, are at odds with FOIA’s de novo standard of review. This Article suggests that FOIA’s public policy goals would be better served if Congress takes decisive action to clarify FOIA’s language and fill in such ambiguities and gaps.

Marshall J. Breger & Gary J. Edles, Independent Agencies In The United States—Law, Structure, And Politics, Roberta S. Karmel

Catholic University Law Review

Roberta S. Karmel, Centennial Professor of Law and Co-Director of the Dennis J. Block Center for the Study of International Business Law at Brooklyn Law School, reviews Marshall J. Breger & Gary J. Edles new book Independent Agencies in the United States: Law, Structure, and Politics.

Professor Karmel examines and evaluates each chapter of Independent Agencies in the United States: Law, Structure, and Politics from her own unique perspective based on her experience as a staff member and, later, commissioner of the Securities and Exchange Commission, director of the New York Stock Exchange, and member of the National Association of …

Enhancing Accountability At The Department Of Veterans Affairs: The Legality Of The Veterans Access, Choice, And Accountability Act Of 2014 Under The Due Process Clause, Ashton Habighurst

Catholic University Law Review

In April 2014, news of long delays at the Phoenix VA Medical Center and the subsequent deaths of forty Veterans awaiting medical appointments shocked the nation. Based on this perceived failure among VA’s senior medical staff, legislation swept through the House and the Senate in an attempt to enhance accountability at the VA. By August 2014, President Obama signed the Veterans Access, Choice and Accountability Act of 2014 into law. This Act revises the termination procedures concerning the VA’s senior executives, by eliminating the notice requirement, significantly reducing the appellate procedures for adverse employment decision to the Merit Systems Protection …

The Minty Taste Of Death: State And Local Options To Regulate Menthol In Tobacco Products, Michael Freiberg

Catholic University Law Review

Explaining why the additive menthol in tobacco products creates major public health risks, this article advocates for restricting the addition of menthol in cigarettes as a way to reduce smoking-related disease and death. Author Michael Freiberg describes how the decision to regulate menthol in tobacco products, on a federal level, was historically delegated by Congress to the discretion of the U.S. FDA, outlines the U.S. FDA’s subsequent failure to regulate menthol, and surveys state and local government efforts to regulate menthol in response to the FDA’s inaction. The article proposes additional actions that these state and local governments could take …

Chevron'S Legacy, Justice Scalia's Two Enigmatic Dissents, And His Return To The Fold In City Of Arlington, Tex. V. Fcc, Stephen J. Leacock

Catholic University Law Review

The creation by the judiciary of the doctrine of Chevron deference to administrative agencies’ determinations, followed by the judiciary’s application and supervision of the Chevron deference doctrine in Administrative Law continue. Protection by the judiciary of the evolution of the doctrine also continues as an integral component of the judiciary’s contribution to the central objective of the three coequal branches of government to achieve for the United States a more perfect union. However, synergistic cooperation between the three branches in order to achieve that central objective requires that each branch honor its own constitutional obligation under the United States Constitution …

Removing The Distraction Of Delay, Jill E. Family

Catholic University Law Review

Immigration adjudication is in an awkward position. There is an intricate system to adjudicate immigration removal (deportation) cases, but that system is hindered by restrictions, and the constant threat of further restrictions, that reflect distaste for providing process to foreign nationals facing removal. There is a push and pull phenomenon, with immigration adjudication stretched uncomfortably in between two forces. On the one side, there is a push to apply common notions of due process to immigration removal cases, to push that the same concepts of procedural justice should apply in immigration cases as they would in any other context. On …

The Protection Of Deposits And Depositors: A Limited Interpretation Of 12 U.S.C. § 1833a, Alyssa King

Catholic University Law Review

No abstract provided.

The Travel Act At Fifty: Reflections On The Robert F. Kennedy Justice Department And Modern Federal Criminal Law Enforcement At Middle Age, Adam H. Kurland

Catholic University Law Review

No abstract provided.

Resurrecting Court Deference To The Securities And Exchange Commission: Definition Of “Security”, Steven J. Cleveland

Catholic University Law Review

No abstract provided.

Giving Consumers A Leg To Stand On: Finding Plaintiffs A Legislative Solution To The Barrier From Federal Courts In Data Security Breach Suits, Patricia Cave

Catholic University Law Review

No abstract provided.

America’S First Consumer Financial Watchdog Is On A Leash: Can The Cfpb Use Its Authority To Declare Payday-Loan Practices Unfair, Abusive, And Deceptive?, Creola Johnson

Catholic University Law Review

No abstract provided.

Waiving Goodbye To Nondisclosure Under Foia’S Exemption 4: The Scope And Applicability Of The Waiver Doctrine, Patrick Lightfoot

Catholic University Law Review

No abstract provided.

A Whole New World Of False-Claims-Act Liability: The 2009 Amendments And Learning Where To Draw The Line, David Baker

Catholic University Law Review

No abstract provided.