@nicholasbednar.bsky.social and I have an op-ed in @bloomberglaw.com encouraging litigators who suing regulatory agencies that are missing more than half of their membership (like the CFTC, FTC, and NCUA) to include quorum violations among their claims. news.bloomberglaw.com/legal-exchan...

Does an enterprising class-action lawyer want to take this on, on the basis that the NCUA lacks a quorum and is legally unable to approve this extension?

New polling on crypto says what I've been saying for years: 42% to 32%, voters support strong legislation to protect consumers, stop scams, address money laundering, and ensure that crypto can't threaten the financial system. punchbowl.news/2-6-26-crypt...

Interesting amicus brief by @democracyforward.org in Trump's $10b tax lawuit. They convincingly make the claim that there is no case or controversy if the President is on both sides of the litigation. Interesting consequence of the UET. democracyforward.org/wp-content/u...

It turns out, industry doesn't really like the unitary executive theory. At the encouragement of the banking industry, the FDIC (which includes Russ Vought) just approved procedures that remove PAS officials from adjudicating cases. www.fdic.gov/board/federa...

I know most folks on Bluesky don't follow crypto, but I put this on the Other Site and figured I'd post it here for anyone who wants to understand what's going on. TL;DR: Community/regional banks and Coinbase are locked in a zero-sum competition. If one wins, the other loses.

Spot on

I'll be at AALS this week. Let me know if you want to grab coffee, a meal, or just have a casual chat!

Flagging this for colleagues who study legislation, like @beaubaumann.bsky.social. Someone should write about efforts to redefine through regulation terms that Congress thought had concrete meanings. Beau and I wrote about the term "investment contract," and I've just found another one.

Inspired by others (particularly Jeremy Kress), late yesterday I submitted a short comment letter on the OCC/FDIC NPRM on unsafe or unsound practices. A lot of it was pulled from my prior scholarship, but I learned a fascinating new thing over the course of writing it. 1/

I just filed an amicus brief in Kalshi's lawsuit against Maryland, arguing that the sports-related contracts Kalshi lists are unlikely to be commodity derivatives, such that the CFTC does not have "exclusive jurisdiction" over them and Maryland's gaming laws are not preempted. 1/

Shout out to @tphillips.bsky.social for this one

I just filed an amicus brief in Kalshi's lawsuit against Maryland, arguing that the sports-related contracts Kalshi lists are unlikely to be commodity derivatives, such that the CFTC does not have "exclusive jurisdiction" over them and Maryland's gaming laws are not preempted. 1/

In my new article, "Restraining Acts," I examine the laws restricting banking in all 50 states. These laws generally prohibit nonbanks from receiving deposits and show a legislative preference that banks offer safekeeping of customer funds. papers.ssrn.com/sol3/papers....

Gorsuch reads the clause requiring POTUS to "take care that the laws be faithfully executed" as requiring POTUS to execute the laws. Which is just not what the plain text of the Constitution says.

KJB coming in to clean up the mess. Oy.

Why are we talking about Congress "taking over" departments? Congress created them in the first place!

Gorsuch: Is the solution the ineligible principle doctrine? I'm very confused here. Does Gorsuch want to strike down the FTC Act?

Kagan: If we sever removal protections, you're left with a POTUS that has largely unchecked power over everything, and Congress can't get it back.

KJB: Structuring agencies in certain ways is democratic accountability.

KBJ is in support of Article I power to structure agencies.

Sotomeyer asking a good question about why sever removal restrictions and not powers that run afoul of Article II.

Hear me out: What if we renamed the NCUA as the National Credit Union Administration of Congress? (The President fired 2/3 of the NCUA's board members, and the Supreme Court on Monday allowed the removals to remain in place.)

New Paper: Presidential Control of the Civil Service. Conventional wisdom holds that the civil service sits safely beyond the president's reach. Does it? (1) Not nearly as much as legal scholars think. (2) That's a problem for the execution of the law. 1/12 papers.ssrn.com/sol3/papers....

“The Supreme Court changed a lot of law with Jarkesy,” said Todd Phillips, a law professor at Georgia State University who’s written about the decision. “Lower court judges want to see the Supreme Court flesh it out before taking a sledgehammer to statutes.” news.bloomberglaw.com/daily-labor-...

This is very cool to see up on the Supreme Court's website! You can read @nicholasbednar.bsky.social and my brief in Trump v. Slaughter here: www.supremecourt.gov/DocketPDF/25...

Do I have any followers on here who'd be willing to move for me to become a member of the Fourth Circuit bar? Thanks in advance!

Politico really undersells how legally bonkers this argument is. RIFing employees is agencies' individual decisions, but is pursuant to the President's inherent constitutional authority.

I argue in Democracy Journal that regulatory independence is a progressive value. It's necessary for our high standard of living and serves as a rejection of backroom dealmaking and governing on the basis of campaign donations and bribes. Read it here: democracyjournal.org/arguments/am...

@jamellebouie.net, please do a column about how the same logic applies to other independent agencies, like the Nuclear Regulatory Comm'n. Though everyone is focused on the Fed, I spoke to a former NRC chair who told me that they're scared of a Fukushima disaster on US soil b/c of the UET.

If you're Hill staff (D or R) you're worried about losing minority party commissioners, please reach out. @nicholasbednar.bsky.social and I are speaking staff about legislative language that we think could mitigate some of the losses from the Supreme Court. We'd love to speak with you, too.

Very interesting that the Administration's application to the Supreme Court makes clear it is not challenging the constitutionality of the Fed's for cause removal protections. This won't be a chance to directly overrule Humphrey's.

I'm up in @bloomberglaw.com arguing that the recent push to reshape bank supervision, and Matters Requiring Attention in particular, "is the wrong remedy, resulting from [a] misdiagnosis of MRAs’ problems."

I'm up in @bloomberglaw.com arguing that the recent push to reshape bank supervision, and Matters Requiring Attention in particular, "is the wrong remedy, resulting from [a] misdiagnosis of MRAs’ problems."

I truly cannot wait to read this complaint.

This WSJ op-ed is misleading. The Constitution gave Congress the right to regulate the value of money, and to regulate interstate commerce. There's no good reason a delegation of the first can have removal restrictions but the other (used for FTC, NLRB, etc) cannot. www.wsj.com/opinion/trum...

This reminds me of when Mick Mulvaney decided to rename the CFPB the BCFP and the cost-benefit analysis demonstrated this change would cost the government about $20 million and the private sector about $300 million more. At least Mulvaney had a statutory hook for his name change.

Sen. Lummis right now is demonstrating that legislators are buying into the Supreme Court's interpretation of the Constitution--the Fed's bank regulation functions must be controlled by the President.

@warren.senate.gov rightly criticizes the OCC for failing to protect the stablecoin market from presidential interference. If the OCC preferences stablecoin issuers with ties to the President, it would be opening up stablecoin holders, other issuers, and the real economy to real risks.

DOJ says that "The President’s judgment about what constitutes 'cause' [for removing a Fed governor] is not subject to judicial second-guessing." If that's true, then the Federal Reserve Act's removal clause offers absolutely zero protection. That just cannot be the case.

I have a thread up over at the other place explaining a little bit the contours of Governor Cook's lawsuit against POTUS, the Fed, and Fed Chair Powell. x.com/tphillips/st...

To all my law prof friends: Does a Fed Governor have a constitutional due process right to a hearing, as civil servants do? If Trump didn't give Cook that, we can't know if there really was cause, right?

Some questions: Who is going to sue: Will it be Cook herself, or will it be the Board on her behalf? If she doesn't get a preliminary injunction before the next Board/FOMC meeting, will Powell let her vote? Will this affect the Senate's consideration of Miran?

The existence of a criminal referral--especially one that has nothing to do with the job one is performing--is not cause to remove someone from their position. I hope Governor Cook fights this in court, asking for a preliminary injunction to get her back in her job.

An excellent observation by Adam Levitin: No one would tolerate the IRS commissioner acting like Bill Pulte is. Pulte is using his office to go after political opponents. www.creditslips.org/creditslips/...

I've been seeing this go viral (to the extent that things about money policy go viral). Wyoming probably isn't violating the Constitution, the prohibitions of which are about money creation. Wyoming's tokens are backed by assets in trust, meaning they're of a fundamentally different character.

I'm very excited that this article is now forthcoming in the Stanford Law Review's symposium issue on The APA at 80!

Crimes I Have Witnessed as a Resident of Washington, DC: "The line at Call Your Mother on a Sunday morning" www.mcsweeneys.net/articles/cri...

I've posed a new essay on SSRN discussing what I call presidentially-connected firms and the importance of independent regulators. I also guesstimate that President Trump is receiving about $13 million annually from the USD1 stablecoin. Here's the link: papers.ssrn.com/sol3/papers....

I've posed a new essay on SSRN discussing what I call presidentially-connected firms and the importance of independent regulators. I also guesstimate that President Trump is receiving about $13 million annually from the USD1 stablecoin. Here's the link: papers.ssrn.com/sol3/papers....