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STEVEN GOW CALABRESI CLAYTON J. & HENRY R, BARBER PROFESSOR OF LAW NORTHWESTERN PRITZKER SCHOOL OF Law 375 EAST CHICAGO AVENUE CHICAGO, ILLINOIS 60611 February 6, 2019 ‘The Honorable David S. Johanson Chairman US. International Trade Commission 500 E Street, .W. Room 112-A ‘Washington, D.C. 20436 Dear Chairman Johanson: I write to you in your capacity as Chairman of the US. International Trade Commission (ITC), obligated by 19 US.C. § 1331(@)(QXA)Gii) to “exercise and be responsible for all... administrative functions of the Commission” except as otherwise provided by statute. As a knowledgeable, concerned citizen, speaking in my independent capacity and not on behalf of any institution, I am giving you notice of an apparent violation of the Appointments Clause of the US. Constitution’ by the Commissioners of the ITC. In addition to my giving notice to the Commission of this important matter of general concern, I request specifically that you include this letter among the comments submitted to the ITC in response to its solicitation of public comments concerning the Commissioners’ review of the Recommended © US. Const, Art II, §2,¢L.2. The Honorable David 8, Johanson Page 2 of 18 February 6, 2019 Determination in the 1065 Investigation, Certain Mobile Electronic Devices and Radio Frequency and Processing Components Thereof.* I am an expert on constitutional law and on the Appointments Clause in particular. [ hold a B.A. from Yale College and a J.D. from Yale Law School. In 1982, during law school, I co-founded the Federalist Society for Law and Public Policy Studies. In my career, during the Reagan administration, I served as a special assistant to Attorney General Edwin Meese III, advising him on judicial appointment selections and constitutional law issues. In addition, I have clerked for Judge Ralph K. Winter on the US. Court of Appeals for the Second Circuit and for Judge Robert H. Bork on the US. Court of Appeals for the D.C. Circuit, as well as for U.S. Supreme Court Justice ‘Antonin Scalia in 1987-1988. Judges Bork and Winter were both experts on antitrust law, and both Justice Scalia and Judge Winter were experts on the Appointments Clause in particular, and I discussed that Clause with both of them at length during my clerkships. ‘Justice Scalia wrote the majority opinion in Edmond v. United States, and Judge Winter, before his elevation to the bench, represented Senator James Buckley in Buckley e. Valeo* and wonon the Appointments Clause issue before the Supreme Court in that case. Both Edmond and Buckley v. Valeo are bedrock precedents upon which the Supreme Court relied in Lucia & SEC; its most recent Appointments Clause decision. + Initial Determination and Recommended Determination, Certain Mobile Electronic Devices and Radio Frequency and Processing Components Thereof, Inv. No. 337-TA-t065 (USITC Sept. 28, 2018; redacted public version released Oct. 29, 018) {hereinafter 1065 Investigation Initial Determination and Recommended Determination}. > §20US. 6510997. + 424US.10976) 51385. Cr. 2044 Gor). STEVEN GOW CALABRESI ‘The Honorable David S, Johanson Page 3 of 18 February 6, 2019 Tam currently the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law, where I have taught since 1990, and I have been a Visiting Professor of Law at Yale Law School every fall semester from 2013 to 2018 and am. making arrangements with Yale to extend my professorship for the next five years. Iam the coauthor of a widely used constitutional law casebook: Michael Stokes Paulsen, Steven Gow Calabresi, Michael W. McConnell, Samuel L. Bray & William Baude, The Constitution of the United States (Foundation Press 3" ed. 2017). It includes an entire assignment on the meaning of the Appointments Clause. In addition, I have published over seventy law review articles and have been published in all the top law reviews, including the Harvard Law Review, Yale Law Journal, Stanford Law Review, Columbia Law Review, University of Chicago Law Review, Virginia Law Review, Michigan Law Review, and Northwestern University Law Review. I believe I have now said more than ‘enough to support my claim to being one of the nation’s academic experts on both the Appointments Clause and the separation of powers. I teach this material at the law schools at both Yale and Northwestern In my expert judgment, the Initial Determination and Recommended Determination in the 1065 Investigation,’ over which Thomas B. Pender presided as an administrative law judge (ALJ), appear to be tainted by a serious violation of the Appointments Clause, as interpreted most recently by the Supreme Court in Lucia, Mr. Pender issued his Determinations following his retirement from the position ofan ITC. ‘ALJ and without any public evidence that the Commissioners reappointed him a lawful © 1065 Investigation Initial Determination and Recommended Determination, supra note 2. gat STEVEN GOW CALABRESI