The Fault, Dear PCAOB, Lies Not in the Appointments Clause, but in the Removal Power, That You Are Unconstitutional
Julian Helisek · June 2009 77 GEO. WASH. L. REV. 1063 (2009) Free Enterprise Fund v. Public Co. Accounting Oversight Board, easily one of “the most important separation-of-powers case[s] regarding the President’s appointment and removal powers . . . in the last 20 years,” is off to the Supreme Court. The case involves a facial challenge to... Read More
Medicare Part D: Rights Without Remedies, Bars to Relief, and Miles of Red Tape
Elliot Golding · June 2009 77 GEO. WASH. L. REV. 1044 (2009) Medicare Part D, enacted as part of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (“MMA”), was designed to revolutionize the public health system by using the private insurance market to make prescription drug coverage for the elderly available and affordable.... Read More
Early Termination Fees: Fair game or Federally Preempted?
Ben Everard · June 2009 77 GEO. WASH. L. REV. 1033 (2009) Few technological developments in the modern era have impacted the day-to-day lives of Americans more significantly than the cell phone. The development of cell phones and the first cellular networks emerged in the latter part of the twentieth century. By 2007, half the... Read More
Challenges to Inclusion on the “No-Fly List” Should Fly in District Court: Considering the Jurisdictional Implications of Administrative Agency Structure
Shaina N. Elias · June 2009 77 GEO. WASH. L. REV. 1015 (2009) Alex Harris likes to travel with his family. In fact, Alex’s family, who lives in New York City, recently took a trip to London. Upon their return to John F. Kennedy International Airport from London, however, Alex Harris and his family were... Read More
Morrison, Edmond, and the Power of Appointments
Andrew Croner · June 2009 77 GEO. WASH. L. REV. 1002 (2009) The power of appointments under the Constitution is governed by the Appointments Clause. On its face, the Appointments Clause appears to be a model of clarity among the many more vague commands of the Constitution;the procedures used for the appointment of federal officers... Read More
Early to Bed for Federal Regulations: A New Attempt to Avoid “Midnight Regulations” and Its Effect on Political Accountability
Christopher Carlberg · June 2009 77 GEO. WASH. L. REV. 992 (2009) After serving either four or eight years as the most powerful person in the world, no President of the United States likes to think that his influence will suddenly vanish on his successor’s Inauguration Day. History has shown that most presidential administrations exert... Read More
Is a Competent Federal Government Becoming Oxymoronic?
Peter H. Schuck · June 2009 77 GEO. WASH. L. REV. 973 (2009) Thoughtful books on governmental effectiveness are always in short supply, and never more so than today. The Bush Administration was a sink of incompetence (or worse). Examples abound, but I shall identify only five. Even many of the most ardent supporters of... Read More
Transparency and Public Participation in the Federal Rulemaking Process: Recommendations for the New Administration
Cary Coglianese, Heather Kilmartin & Evan Mendelson · June 2009 77 GEO. WASH. L. REV. 924 (2009) Virtually every major aspect of contemporary life is affected by government regulation. For good or ill, the administrative process affects the food people eat, the water they drink, and the air they breathe. Economic activity depends on the... Read More
Are Administrative Patent Judges Unconstitutional?
John F. Duffy · June 2009 77 GEO. WASH. L. REV. 904 (2009) Under 35 U.S.C. § 6, administrative patent judges of the Board of Patent Appeals and Interferences (“BPAI”) are appointed by the Director of the Patent and Trademark Office (“PTO”). That method of appointment is almost certainly unconstitutional, and the administrative patent judges... Read More
Agency Self-Regulation
Elizabeth Magill · June 2009 77 GEO. WASH. L. REV. 859 (2009) Discretion is at the center of most accounts of bureaucracy. It is no mystery why this is so. While agencies are hemmed in by statutes, the President, and courts, they still possess enormous discretion that they can exercise in ways that matter to... Read More