Ordering a party to disgorge gains from fraud is of course not a “public right” but a quintessential legal proceeding that should be brought in a real court.
There’s a lot of things administrative agencies do that probably aren’t Constitutional and violate the separation of powers. Executive branch quasi-courts adjudicating claims like fraud is the tip of the iceberg. The Supreme Court upheld these statutes in the mid-20th century under the shadow of FDR’s threat of court packing. The Reagan-era Supreme Court was not inclined to roll those decisions back, but I think you will see the current Supreme Court being much more active on that front.
[1] Law courts are the courts we usually think of, with juries. They are the only courts that can award damages. Courts of equity are like the Delaware chancery court—they can award certain equitable relief such as recission of a contract. Today most states and the federal system invest legal and equitable powers in the same courts, but the right to a jury trial arose in England when those courts were distinct.
I believe Mario Batali did that quite recently in his alleged creepy touching trial.
Back to your explanation, this seems like a court functioning the way it was meant to. I think everyone will agree there was a massive Executive overreach in the 20th century, with congress abdicating much of its counterbalancing power (making difficult/unpopular policy decisions that are future-looking is not the recipe for re-election).
Bowing to precedence regardless of the quality of the decision seems like bad law facilitating more bad law.
But the principle invoked in this case, non-delegation doctrine, is far reaching. The non-delegation doctrine is a theory, some might say a legal fiction, that says that Congress can’t delegate its power to make the laws, but can make a broad law and allow agencies can fill in details so long as Congress gives the agencies “an intelligible principle” for doing so.
This is not without basis—there is no obvious line to be drawn between Congress’s power to make laws, and the executive branch’s power to enforce them in a discretionary manner. There is nothing wrong with Congress making a broad law “fraud shall be illegal” and the SEC making rules for itself about how to enforce that. But clearly at some point executive regulation looks more like law making and less like an agency imposing guidelines for the exercise of its own discretion.
Historically the Supreme Court has been unwilling to police that line, but that could change. One thing I think you might see is greater scrutiny of agencies applying existing authority to enter new areas of regulation. The theory might be, for example, that it’s fine for the EPA to cut sulfur particulate targets, which clearly falls under the scope of the Clean Air Act, but that the agency needs new Congressional authority to do something like impose limitations on CO2 emissions, which involves a different problem than the Clean Air Act was intended to solve. There is already precedent in this direction, under something called the Major Questions Doctrine: https://crsreports.congress.gov/product/pdf/IF/IF12077
If being tried by a jury is so necessary for justice, how is it that ~95% of people currently imprisoned in this country have never faced a jury trial?
The answer is obvious - actually having jury trials for everyone would grind the country to a halt, so for the majority of us, this sort of right only exists in theory.
But you'll never hear the 5th circuit saying a word on that subject.
In a just world, this new development should mirror how jury trials work for the rest of us - anyone demanding a jury trial to avoid regulatory censure should be subjected to such horrific penalties if they lose, that nobody in their right mind would ever choose that option. Sadly, we do not live in a just world.
>In a just world, this new development should mirror how jury trials work for the rest of us - anyone demanding a jury trial to avoid regulatory censure should be subjected to such horrific penalties if they lose, that nobody in their right mind would ever choose that option. Sadly, we do not live in a just world.
I'm assuming this is sarcasm because you're describing a Lovecraftian bureaucratic horror-show.
[1] I'm sidestepping the reason for why this might be so common, which likely has to do with the lack of public defenders and high caseloads though I don't have actual data that supports this.
Also, personally it drives me crazy when American legal discussions fall back to English legal traditions. Didn’t we fight a big revolution so we wouldn’t have to live with all that baggage? I’m not a lawyer so I know I’m out of my depth. But as a U.S. citizen living under a written Constitution, I have a hard time understanding why my country should make itself beholden to England’s legal history specifically.
Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired Power Plants based on service area, customers, and operating capacity on Wednesday and so forth.
The dismantling of the administrative state leaves us in a precarious position where we either end up completely unregulated (which I know some people would welcome, but as someone that enjoys not getting asbestos in my breakfast cereal, I think we need some regulations). Do we just end up with massive packages of regulations written up by ALEC and other private groups that then get handed to legislators and passed?
Sure an unelected bureaucrat sounds bad, but if the alternative of paying some guy $40k a year to think about these issues and draw up regulation is to let the person being regulated write their own rules, I'll take the former. I suspect the latter regulations will end up being whatever makes the most profit for the person being regulated, and if we all have to breathe lead because it makes some company's profits go up then so be it.
The government isn't always on the side of the common man, but neither are multinational corporations, and the multinational corporations are pretty up front about being in it for themselves.
One of the downsides of the fixed written Constitution being hard to change is that you end up with these strange rules where the law today is dependent upon intuition about how a current problem would have been viewed through the lens of the common law at the time of the founding, and we mostly only have English legal treatises to fall back on, so it feels like being beholden to English legal history.
"Interesting" to say the least. Trying to govern a modern nation of 370 million people based on a literal 18th-century interpretation of a Constitution designed to govern a handful of former colonies is going to be a (very predictable) disaster, which is why the Court hasn't done it before.
No, actually, the revolution mainly had the opposite intent: anger that England was denying the English colonists the rights they were entitled to as Englishmen and would have enjoyed in England.
[0] https://en.wikipedia.org/wiki/Seventh_Amendment_to_the_Unite...
What about executive orders?
That seems like extreme overreach of the executive branch.
It's it being used in an emergency either.
The presidents are issuing hundreds of them during their terms.
There is a major lack of oversight on Executive Orders.
BUT for the most part they are an accurate use from what I can tell. Usually they are merely aspirational goals for agencies to implement, much more similar to a CEO's quarterly goals for subdivisions. The President is a dual office role of being head of the executive branch, and being head of the military.
I don't really see that much straight up unilateral ordering of specific actions, and those would be the only constitutionally questionable ones.
Additional context on that threat of court packing is that the Supreme Court was already invalidating and gutting the New Deal! Its such an important story to me because my grade school history books all upheld the New Deal as this monumental and amazing thing.
From what I can tell, 75% of it (or 75% of the programs it created) was declared unconstitutional, and everything else just hasn't been challenged yet!
And of the things that were challenged and declared constitutional, it was under the threat of court packing! Now, 3-5 generations later, the Supreme Court just can't imagine how society functions by ruling accurately to begin with! I'm pretty interested in any court unwinding this incongruency.
It may be that the New Deal does contain many unconstitutional provisions, but also that that same legislature was in fact a net benefit for Americans.
Seriously, this is not a sarcastic or troll post. I have always been confused about this.
FDR implemented a bunch of large social programs which naturally grow the government, spend more money, and therefore require more tax dollars to fund.
Social programs that redistribute money have long been considered a form of forced charity which many conservatives think is immoral.
Disclaimer: Not taking a side here. In 2022 I don't think we have a "good" political party in the US let alone a perfect one.
I wonder what % of the entire judiciary budget could be paid via the budget SEC division of enforcement.
From that standpoint, this assertion of jurisdiction could entail a better staffed judiciary.
https://www.reuters.com/legal/government/sec-in-house-judges...
This particular article also links to a copy of the opinion.
Until now, the SEC seldom bothered. But if they have to prove their case in court, they may as well go all the way and go for a jail term.
The end-goal doesn't appear to be justice for the aggrieved party but more so the elimination of agency-issued oversight. The jurisprudence seems to follow the idea that if the legislator didn't explicitly grant or disallow an agency to do something or regulate something then that agency has absolutely no power at all to do it.
On a basic level this seems to make sense but the practical application of this would mean that legislators would need to explicitly pass legislation anytime a regulatory body needs to address a specific issue or regulate some behavior (that presumably they already had the authority to regulate by the very nature of the agency being created).
This _may_ be a regular case that naturally found its way into the legal system - but the 5th circuit has the history that it does and the targets of these lawsuits (SEC, EPA, etc) typically have deep-pocketed foes.
[0] https://www.npr.org/2022/02/28/1082934438/supreme-court-to-h...
Yeah, can you imagine the horror of making the congressmen actually do their job and pass the laws, instead of delegating all their authority to unelected, nameless, and effectively unaccountable bureaucrats, so that they have more time to spend on fundraising and campaigning? This will literally grind US into halt, and bring it to similar stagnation and stasis it was under before FDR.
Not necessarily - this judgement is about assigning a punishment for a violation, which would generally require a trial; but immigration courts usually decide cases where whatever they judge is not a punishment but rather granting or denying a privilege, so their decision is legally fundamentally different even if it results in a deportation.
there were a lot of barriers to this occurring though, which is a bigger issue.
Unlike the SEC that goes after industry, FERC has frustrated thousands as a rubber stamp for industry and aggressive granting of eminent domain.
These agencies are in desperate need of balance with the courts.
These aren't hard problems since legal stuff is pretty rigid about making sure these things are not ambiguous.
This ruling is pretty good and readable though. Many state and federal laws are dense AF.
The important factor here is that the SEC isn't doing their job. If 2009 is of any indication, that was just the tip of the iceberg. They are meaninglessly issuing tiny fines that big funds are simply paying. Eventually the fines would amount to enough money that it doesn't hurt their bottom line but does engage the lawyers.
Now it's the wild west. Feel free to commit whatever securities crimes you wish. SEC is basically not going to punish you.
Sucks to be the gamestop folks. They basically just lost their infinite money.
* SEC's in-house judges violate U.S. Constitution by denying fraud defendants their right to a jury trial and acting without necessary guidance from Congress
* The court ruled 2-1 in favor of hedge fund manager George Jarkesy Jr and investment advisor Patriot28 LLC, overturning an SEC administrative law judge's determination that they committed securities fraud.
* Davis also split from the majority's holding that SEC judges are unconstitutionally protected from being fired.
Currently, ALJs can only be removed for cause, and the only people who can remove them are SEC Commissioners and Merit Systems Protection Board members [3].
[1] https://www.gibsondunn.com/supreme-court-rules-that-sec-aljs...
[2] https://en.wikipedia.org/wiki/Administrative_law_judge
[3] https://nclalegal.org/2021/01/u-s-supreme-court-will-not-hea...
In the ruling Wednesday, the majority said that because seeking penalties is akin to debt collection, which is a private right, the defendants were entitled to a jury trial."
[1]: https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...
There are other circuits across this vast land that get even less action. All circuits operate within a silo of case law within that circuit, with a much lower weighting towards precedent in other circuits, and an even lower weighting towards rulings further removed.
Just need inspiration to try!
I love this. I hope this trend catches on, I can't wait to gut these bloated agencies and force Congress to get back to work at the risk of a completely paralyzed society if they don't.
Any supreme court ruling, and court ruling, and any agency ruling or even from the White House, that acts as a Super Legislature instead of some other rationale, is going to get gutted, no matter how old or "settled" the case masquerades to be. Find a different rationale to reach the same desired goal, or rely on Congress, or the government cant be involved.
You seem to be making the bold assumption that both parties are acting in good faith. A completely paralyzed society is actually a victory for one party.
The thinnest rationale I've seen was that Florida Federal district judge that gutted the CDC order one month before it was going to expire anyway, in that case she spent a comical amount of time defining the word "sanitation" after finding a couple dictionaries from 1944, when the act was passed, specifically because Congress neglected to define and codify what sanitation meant for the purpose of the CDC's authority. I'm like "okay. thats low key hilarious" and I would love to see how this pans out on appeal.
I just am not finding the court system to be doing out of character things. I can independently find some outcomes to be shocking or inconvenient, but surprised based on my analysis of how I expect them to act? No. Nothing surprising occurring.
Of course, given what happened with the last presidency, that is probably the desired outcome for everyone rooting for paralysis.
If they can't, then they have to rely on Congress, if they can't then national government cant be involved.
Simple order of operations.