John O’Quinn first met Michael McConnell during law school, when McConnell was a professor, shortly before he became a circuit judge for the Tenth Circuit. After McConnell left the bench, the two teamed up again at Kirkland in 2009.
The pair has notched several precedent-setting wins against regulatory agencies, including Horne v. Department of Agriculture, more commonly known as the “raisin case.” O’Quinn and McConnell convinced the Supreme Court that the agricultural marketing order system, which dated back to the Great Depression, represented unconstitutional taking of property without compensation. “It was a big win for the Hornes, but also a win for personal liberty,” says O’Quinn. The pair also achieved a notable victory in SEC v. Securities Investor Protection Corp. when they successfully defended the SIPC against claims by the SEC that it was required to cover losses arising from a Ponzi scheme. “This was first case where the SEC had exercised its authority to try to force SIPC to cover losses its own lawyers found to be outside the coverage,” says McConnell.
According to O’Quinn, as the administrative state becomes more complex, courts will have to be more vigilant. “They have to make sure that people don’t lose their rights through death by a thousand cuts.” The growth of the regulatory state is accelerating, without congressional statutes to authorize or keep it current, says McConnell. “Increasingly we see innovative executive action that seemingly goes beyond what Congress has authorized. A lot of our work is at the intersection of constitutional law and regulatory matters. This was not a subject of litigation 25 years ago.”
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