The gist of the decision is that the SEC’s imposition of civil penalties and disgorgement violated defendants’ seventh amendment right to a jury trial. Under the seventh amendment, you have a right to a jury trial for any claim that would have been an action at law in the courts of England at the time of the founding, prior to the merger of law and equity.[1] There is an additional principle that so called “public rights,” like Social Security benefits or FCC licenses, need not be adjudicated by a real court (under Article III of the Constitution) but can be adjudicated by the executive branch. The theory is that public benefits are discretionary so the executive branch can decide how to dish them out. So you end up with administrative agencies having internal adjudicating bodies that look very much like courts, but which are not in fact courts.
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.
Very helpful. Seems like it could be a huge deal. Am curious what the impact from a caseload perspective would be? How many actions are handled on an administrative basis vs how much capacity the relevant court systems have? And impact on duration- administrative actions typically handled in x time, courts take y time. Would love pointers if anyone has them.
I think most of those cases that before were tried by administrative courts will still end up in a settlement instead of a trial. The difference is that now the process will not be blatantly favoring the executive agencies of federal government, which right now act as judges in the cases they themselves prosecute, and decide appeals from their own decisions.
You can find lists of agency actions, FCC, SEC, etc. etc. There aren’t often all that many, and they wouldn’t all fall under the category affected here.
Can defendants in criminal or civil court request a verdict from a judge or panel of judges instead of a jury?
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.
Yes, both civil and criminal cases can try the case to a judge, called a bench trial. Both sides have to agree to that however, since technically both sides have a right to a jury trial.
> Yes, both civil and criminal cases can try the case to a judge, called a bench trial. Both sides have to agree to that however, since technically both sides have a right to a jury trial.
The government does not have a right to a jury trial, because the government doesn't have rights. (In the federal system, for example, government consent is required for a bench trial in the Federal Rules of Criminal Procedure, but because that is not a right, and the defendants right to a speedy and public trial, there is at least one case where a federal court, when jury trials were suspended because of the pandemic, conducted a bench trial under a defense jury trial waiver despite the government refusing consent and preferring jury trial.)
Some effects will be relatively small. For example the SEC has authority to haul you into court, in a proceeding which reflects how the system is supposed to work, with the executive branch prosecuting the law and the judicial branch deciding it.
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 you want to hear how this legal conflict directly plays out in a real case, the SCOTUS oral arguments for the recently heard West Virgina v. EPA are available via the Oyez podcast:
The most practical effect from my perspective (engineer that has to deal with regulatory permitting and compliance) is that it will hopefully act as an incentive for agencies to better cooperate with applicants, to do so in a timely manner, and to prevent permitting demands from going beyond what's explicitly required by statute.
Even where it's currently clear that administrative agencies don't have authority to deny a given permit application, they often have the ability to delay it indefinitely, or demand superfluous reqs[0] be met before approval. (Since current caselaw requires a 'final administrative decision' before being able to appeal to an Article III court, an indefinite delay is essentially a loophole for agencies to wrongly "deny" a permit while avoiding judicial review.)
Agencies will want to avoid court cases setting precedent that might broadly affect internal administrative regs/policy beyond the case at hand, and therfore the future overall autonomy of the agency. (Notwithstanding the current lawfare abuse of agencies entering consent decrees premised on feigned controversy.)
Court rulings would also better bind agencies to previous decisions, and better prevent permit revocation for arbitrary or political purposes (see Keystone XL revocation).
[0] For example, permits for natural gas pipeline compressor stations are currently only being approved if they are powered by electric motors, instead of (the traditional method) of NG turbines ("self powered" by siphoning a portion of the fuel being pumped). Even if you presume CO2 emissions fall under current EPA clean air act authority (they don't), the requirement doesn't actually reduce net CO2 emissions with respect to the project's environmental impact, since it just means a small amount of NG is consumed at a different point source, instead of further downstream.
Not only does this not reduce the overall NG consumption (and therefore not affect net CO2 produced), but it adds embedded and operating inefficiencies, as well unnecessary points of failure. (see: Texas deep freeze blackouts where some NG "backup" infrastructure failed because it required grid power to operate. Especially true in remote areas lacking any electrical infra like offshore/aggregating compressor stations.)
Here, the EPA uses permitting power to implement supralegal political policy beyond the statutory requirements, by stretching policy logic far beyond what would survive the most basic judicial review. Under the status quo, judicial review is almost always an additional cost to the applicant beyond the expensive initial permit application.
Judicial relief (or the threat thereof) that potentially pre-empts some of those bureaucratic costs would be a real game changer for both private projects and public infrastructure, in terms of both roi and time/effort to implement.
> The gist of the decision is that the SEC’s imposition of civil penalties and disgorgement violated defendants’ seventh amendment right to a jury trial
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.
I don't know where you got that statistic, but regardless of how true it is, I suspect the reason so many are imprisoned without having a jury trial is that they waived that right[1] and took a plea deal.
>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.
> but regardless of how true it is, I suspect the reason so many are imprisoned without having a jury trial is that they waived that right[1] and took a plea deal.
And why do they waive that right?
Because if they don't waive that right, they are subjected to the Lovecraftian bureaucratic horror-show[2] you pooh-poohed just a few lines down.
Take the plea deal, and serve two, or go to trial, flip a coin, and serve ten.
> I'm sidestepping the reason for why this might be so common.
You can't side-step it - you have to look at the system as a whole. It's true that most people can't ever afford to hire a competent lawyer, and it's true that going to trial with a public defender is lunacy, and it's also true that being found guilty at a trial is far, far worse than taking the guilty plea. This is by design - it's a check and balance that ensures most people don't exercise that right.
A right that for most of us only exists in theory is no right at all. It is a privilege, available for the privileged - in the sense that a feudal lord was privileged. It's justice, but only for those who can afford it. It's a complete perversion of equality under the law.
So, of course I'm mad as hell that this court ruled that the group of people most-favored by having the option for a jury trial receiving it, while we go on, and shrug our shoulders at the inaccessibility of it for the rest of us.
I don’t like it either that the right to jury trial is overwhelmingly bargained away, but having the right and bargaining it away is still preferable to not have any right in the first place.
Isn't the issue that in the US you only have a binary choice between jury or plea deal? I'm Canadian and here most trials are bench trials, that is in front of a judge only
The reason why this is often advantageous is that the judge knows well the legal provisions and is more likely to rule in line with previous cases. The judge is also not a prosecutor (and in Canada, not elected by the public) so the judge doesn't have an incentive to be "tough on crime". AFAIK in general, you would only request a jury if you believe your case is in some way fundamentally different from similar cases and you don't want the "default" penalty if found guilty.
It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state, because this is how Congress wants things to work. They passed all those laws to create the agencies, after all. And the expanding administrative state is what has allowed members of Congress to do less and less actual work, and more and more performance art and fundraising. They barely even have to pass budgets any more; the agencies all find a way to keep “essential services” running anyway.
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.
I don't see how this doesn't end with the government basically failing. The modern world is dizzyingly complex, if Congress can't delegate to dedicated agencies how does this all work.
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.
> Are there 435 people in this nation well versed enough to write detailed regulations
That's part of the problem. 435 is far too low for a representative democracy. The U.S. has the highest representation ratio among OECD nations[1]. The size of Congress has been held at this arbitrary number despite the size of the country growing threefold. The value of being in Congress, or being able to influence a member of Congress is enormous. As is the competition to get into one of those 435 seats. Is it any wonder big money controls so much of politics now?
If it had been ratified in 1789, the "mathematical discrepancy" would have appeared between 8 and 10 million citizens. We're well past that now, and could ratify it if the states wanted to screw over Congress.[a] It wouldn't even need to be reintroduced, as submitted amendments don't "expire".[b]
[a]: Twelve states already signed on, just need a few dozen more
[b]: Case in point, the 27th Amendment[0] was submitted to the states for ratification at the same time (1789), but never had enough states sign on until 1991.
But in any given year, at least 200 of them will be elected specifically for the purpose of ensuring that government does nothing at all. So the remaining ones go to extraordinary effort to achieve even the basics, and often fail.
Like things are quite partisan at the moment in the congress. You don't want dead lock, but you do want things to be somewhat difficult to change other wise you will get lots of policy, regulatory and even legal whiplash. If things change too often it could even be worse. Ideally there is some middle ground between deadlock and whip lash. Constant flux is worse than dead lock. It's even why a lot laws regarding regulation, policy ect.. have a date they became effective so people can prepare.
You're kind of mixing up two different things that can be separately analyzed and performed. One is the writing of regulations, which Congress can (and probably should) delegate to administrative bodies. But the interpretation and enforcement of those regulations can, and often does, get put in front of courts. Administrative law judges specialize in hearing cases involving these regulations.
The question in this case is whether juries are also needed in order to survive Constitutional scrutiny, and this opinion concludes it does. So we don't necessarily have to throw out the baby with the bathwater: administrative agencies can coexist with the need for protections for criminal and civil defendants who are subject to the rules they promulgate.
> 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.
They certainly could be well-versed enough to supervise the work of picking the best proposals in each of these domains. Each Congress-critter has enough paid staff to basically be their own public-policy think tank.
They can delegate to agencies. The ruling isn't preventing them from doing that, it's just preventing the adjudication of penalties from being carried out by those agencies.
The SEC still gets to make the rules, they just don't also get to impose penalties on their own, without a jury trial.
From a practical perspective, many of these rules are only implemented
and enforceable because of the "in-house" self-adjudication framework, that operates on the presumption that it's own regs are lawfully valid, and don't have to repeatedly convince outside judges and juries to choose to enforce the sometimes absurd or overreaching rules that only make logical and legal sense to those sheltered within the bureaucratic bubble.
And they only avoid being struck from the books entirely because self-adjudication basically negates any chance of 1st-round judicial review/ scrutiny and other legal protections that are baked into Article III courts.
Which has resulted in agencies being far more aggressive with their rule making than they'd otherwise be.
Additionally, taking into account the game-theory of the framework, the upfront costs and risk vs reward put applicants at a major disadvantage, even before you take into account the effectively endless resources at the disposal of the government. Add the fact that beurocratic delay can tactically benefit an "adversarial" govt agent at little to no net cost or consequence to them personally or to the agency. while simultaneously increasing the applicant's direct application/ compliance/ litigation costs, plus costs and other risks incurred by delay of the project, costs due to govt-demanded project changes or added permitting conditions, and the uncertainty of whether the project is ultimately approved/ permitted at all.
It's not an "end of the world" ruling as some are claiming, but it will have substantial higher order effects beyond ability to impose penalties.
Ya, I agree with you on all that. I will note however that they only began self-adjudicating in 2011, so on its own this probably isn't a big deal. If the non-delegation principle is expanded by the supreme court though, it could be.
There are only 15 cabinet secretaries, each if which heads an executive branch agency. If 15 such can manage and set priorities for such an agency, it should be much easier for 435 people to spread the load and oversee those agencies, including the relevant degree of delegation to agency or independent experts that might be appropriate to a particular issue
Who’s historical court would you like to reference? We’ve not been a country for as long as there have been traditions and laws about finance in particular. We fought for independence from a monarchy and its kingdom, not to be free from governance.
We could have started with our own legal decisions without reference to precedent. After all, that's what early English decisions themselves frequently did. They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.
>After all, that's what early English decisions themselves frequently did.
Not really. What's commonly called English Common Law is itself an Anglo-Saxon bastardization of Norman Law. Even American Law borrows directly from Norman Law in the formers now dwindling but still surviving usage of Latin.
>They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.
While I agree with the premise that is how law should be, that's generally not how it was nor is it so simple to accomplish. A quote to one should remember is that "[A]ny Anglo-American lawyer must cope with a sneaking feeling that there is no such thing as first principles, just one damned case after another."
At the founding, the Constitution documented all the things that were going to be different, but courts were intended to continue to apply the rest of the common law as it was. So, it's less about being beholden to England's legal history as much as it is being beholden to American history as it was at the time. It's just that most of the legal writing that courts depended upon was published by English legal scholars.
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.
>It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state...
"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.
I was referring specifically to striking down long-standing precedents that endorsed mechanisms like SEC enforcement, and interpreting a right of privacy. What we're seeing is a dramatically stripped-down view of the Constitution. If it were being done as part of a broad social consensus that included a plan to revamp the Constitution to meet modern needs, it would be difficult but beneficial in the long run. But what's happening is more akin to tearing down your own house while you're living in it, with no plan for how to rebuild it.
You say tearing down, I say reverting tacky renovations that clash with the intended architectural style.
The structural bones of the constitution itself remain strong, and are made more resilient by removing ad-hoc modifications currently straining that framework beyond its intended yielding limits.
The framing of a house is strong, too, but you can't live in it. Our society and economy are mind-boggling complex compared to the state they were in 1789. Whether you liked the renovations or not is immaterial, they serve a function. Unless you have a plan to replace that function (other than just hand-waving "send it all to the courts"), it will be a disaster.
I think you've got things a bit off. I think more correct ones are:
- "This country became a world power with 76 million residents in 1900 before it got any of the Progressive era administrative state."
- "The country became a world superpower with 180 million residents in 1960 before it got the modern administrative state"
You wrote "world superpower", but the US didn't become a world superpower until WW2, well after ~1915, which is when the population reached 100M.
While the US started becoming a world power in 1898, with the Spanish-American War, and fully became a world power by WWI, that was after the Interstate Commerce Commission was formed in 1887, as the first administrative agency.
Now, you wrote "modern", which of course is in the eye of the beholder and likely is meant to exclude the ICC. Did the modern era start in 1906, with the FDA and the Federal Meat Inspection Act? Or Wilson, with the Federal Reserve (1913) and the FTC (1914)? Or the New Deal (1930s), like the SEC (1934)?
You'll note that all of those were before the US became a modern world superpower, and several before the US population reached 100M.
On the other hand, this beholder - https://ballotpedia.org/Administrative_state - points out that the modern administrative state didn't start until 1964 with Johnson's Great Society programs.
Here's another equally true statement:
- "The country became a world superpower with 203 million residents in 1970 before 18 year olds had the right to vote."
While true, that wouldn't justify removing the franchise from modern 18 year old.
Your observation, even when corrected, seems to be similarly weak as an argument to remove administrative agencies.
As I understand it, the complaint about the "administrative state" is that administrative agencies have the ability to regulate and assess fines or other judgments that should properly be part of Congress and the court system.
And the two major alternative starting points used in practice are Roman law or Sharia law, both of which are likely even less acceptable to someone who doesn't want the baggage of English common law.
On the other hand, in the civil law systems when new countries are formed, as soon as you get the core laws passed (which takes some years of transition) you do generally make a clean start where only the new code of laws matter and everything else is discarded - you explicitly choose which parts of earlier code get included in the new laws, and that's it, old laws get pulled out only if there's a relevant dispute about some events which happened back when those old laws were in force.
While Book of Exodus may be a major bringer of "eye for an eye" to western culture, it is certainly not the origin of the principle. The Hammurabi code predates the events described in the book of Exodus (and thus the book of Exodus) by many centuries, and does encode "Eye for an eye" as a literal prescription (If an citizen should blind the eye of another citizen, they shall blind his eye.)
So it was also a prescription - but yes, as you say, it is also a limitation for retaliation, assigning an equivalent punishment to limit escalation of vengeance.
No they don't. As I said elsewhere, even early English common law was often not written with reference to precedent. You'll see this if you read early English cases.
> 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?
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.
IANL a quick look here [0] does say that court case United States v. Wonson (1812) established the historical test, which interpreted the amendment as relying on English common law to determine whether a jury trial was necessary in a civil suit; around the same time as the War of 1812.
We fought the war to restructure the government. I think if you told the revolutionaries they were fighting to abandon those traditions they'd be very upset.
> The presidents are passing 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.
Executive Orders, technically, are only orders from the Executive (the President) to the rest of the branch. As in, they can only tell the rest of the Executive Branch what to do, not create laws. However, with how much Congress has delegated to Executive Agencies, there's a lot more overlap and gray area than there was 233 years ago.
For example, the CDC has the authority to mandate certain things in the name of public health, because Congress created the HHS (who oversees the CDC) with the express purpose of doing so. So an Executive Order directed at the CDC can, in a sense, give the President that power.
Every creature from the New Deal is probably unconstitutional.
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.
I think implicit in your comment is that the New Deal must not actually be amazing because it turns out that it's likely unconstitutional but... how does that logically follow? It's not like the Constitution was handed down from the heavens as a flawless document.
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.
There’s a process for that. The authority to override or change the constitution is not given to a single government branch but to the states. We’ve had an amendment as late as the 1990s, so it isn’t as of the constitution is immutable.
The authority of each government branch is explicitly enumerated. I’d rather them behave according to the contract they are beholden to than decide they have whatever authority they wish. That’s no longer a constitutional republic.
I’m not saying that a constitutional republic is the end all, be all. I’m just saying there is a process for getting things done and it is supposed to checked by the constitution and the other federal branches. That can be changed by amendment or revolution, but should not be changed by the whim of politicians.
Net positive and constitutional are mutually exclusive concepts. That I do agree, and I agree that my earlier statement doesn't seem to give room for that level of nuance.
It just so happens that all my causes and grudges are from creatures of the New Deal, and I'm not in a position to bring them before the courts yet. Imagine my excitement when I realized how flimsy that era's legislative flurry really was.
Yes it s a great system because foundational change requires a super majority of consensus across multiple political lines. Not just a mob showing up with pitch forks demanding the flavor of the week.
That only works if people don't unreasonably deify the system. You have to admit the constitution is deeply flawed in order to be willing to modify it, and, well, if popular opinion is that it is deeply flawed, you won't amend it, you'll just have judges rule without interpreting it strictly.
Politically speaking, it's a terribly flawed document, because it can't change it without a civil war or functionally one party rule, and its written in imprecise language that opens it up to more judicial interpretation than is necessary or constructive.
I mean, of those 6, one (the 22nd) was passed as a response to the functionally one-party rule by FDR and new-deal dems in the 30s and 40s. Two (the 24th and 26th) were voting rights amendments that were functionally extensions of the 15th amendment, you know...one of the post-civil war amendments. And one (the 25th) was passed after the president was assassinated. One (the 27th) is a very popular idea with bipartisan support, and it still took 200 years to ratify.
I'd also reiterate that social factors have changed, we're currently in the longest break between amendments being passed since reconstruction. None have been passed in my lifetime, and the same group that says we should interpret the constitution extremely strictly is also the one that says that it's perfect as is and we should respect it and the founders great insights. That's not a recipe for changing it.
> Ideally we'd see less of "judges rule without interpreting it strictly,"
That's, just, like, your opinion, man. By which I mean that originalism isn't the only school of thought in regards to the constitution. By the time you've succeeded in convincing people that it is okay to change the constitution, you'll have also convinced them that interpreting it less strictly. Saying it's a living document but not a living constitution is an impossibly hard needle to thread.
And that's doubly true when "should the document be changed" itself becomes a political question, which it has. Something like 20-30% of the US will vote for people on a platform of "I will oppose any constitutional amendment". That's enough to block ratification!
18 times (Articles 3-12 of the proposed Bill of Rights were ratified simultaneously and became Amendments 1-10; article 2 took 201 more years, and Article 1, though it was once one state away from ratification, has still not been ratified and is 27 states short.)
It's not rule by the minority. It's that the majority needs to get wider agreement on their changes if they are to be implemented. The minority cannot force anything to happen. They can only prevent sweeping changes from passing with the slimmest of margins.
For every liberal complaining about the filibuster or Senate debate rules, would you have been fine with total Republican control of all levels of Federal government from 2016-2018? They had a wider majority in both the House and the Senate than the Democrats do right now.
Slowing the pace of massive change is a good thing. It gives time for ideas to be fleshed out. It gives time for ideas to be experimented with at a smaller scale. It gives time for people to see the results or consequences of actions.
Yes the systematic unequal representation in (in descending order of inherent distortion, though abuse of state-level control of apportionment in the latter case means it's not always descending order of actual distortion) the Senate, Electoral College, and House all favor essentially the same geopgraphy and thus the same political faction so long as ideology isn't geographically homogeneous. This favors stable minority rule.
If you look at the data, industrial production starts bouncing back when the worst provisions of the New Deal get struck down by the courts. It was very much self-defeating, the only part that helped was devaluing the dollar wrt. the main foreign currencies.
I'm not sure why its confusing. Conservatives have historically proclaimed themselves to be (in their words even if the actions don't always match) in favor of small government, reduced government spending, and the minimal taxation required to keep a small government functioning.
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.
“Conservatism” is a tent with a lot of different groups, most of whom dislike FDR for somewhat different reasons. There’s small government conservatives like you mention. There are legal conservatives who are animated more by being sticklers for the rules than opposition to government social programs per se. There’s also lots of folks, maybe the biggest group, who like the New Deal but resent FDR judicial appointees for their tendency to ignore clear Constitutional limits on the federal government one hand, while on the other hand reading in lots of restrictions on state moral and social regulation that aren’t so apparent in the Constitutional text or history.
As a lawyer, I disagree. The judicial system depends on the faith of ordinary individuals in it. That means opinions must be written for the public to read, not only other lawyers.
My view is that nothing is so complicated that you can’t explain the gist of it to my mother in law (an intellectually curious woman who nonetheless never finished her college degree). In fact if you’re in front of a jury, that’s exactly what you might have to do.
You explaining the gist of a law and a Hacker News reading the law directly have two very different probabilities of returning a "cockamamie interpretation."
Circuit court and (especially) supreme court decisions are meant to be read. They're fairly accessible.
Even an entirely lay reader will often be much better informed by simply reading the decision than reading some media description of it. The 'spin' of the decision at least has the force of law, while the spin of the media is just clickbait to generate more traffic.
It’s more like arguing you shouldn’t self diagnose your symptoms because you’re not a doctor.
And also, someone who doesn’t know how to code isn’t going to be able to make sense of the source so that particular type of Dunning-Kruger problem is self correcting with programming in a way it’s not with law (or medicine).
You'll learn a lot by reading and it's probably easier to understand than you might think. If you don't do this other people take advantage of you. They do it a lot more than you would think.
This will probably end up being worse for financial-services people who violate the Securities Act. The SEC by itself can't send someone to jail. If they have to go to court, though, the SEC may as well get the Justice Department to bring criminal charges. The court can send people to jail for up to 20 years for violating the Securities Act of 1939.
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.
Not sure about everyone else but it pisses me off that criminal charges resulting in jail time is rarely pursued. The SEC and Justice Department seem to prefer fines which are not an equivalent deterrent.
Sets an interesting precedent for literally every other federal body that "acts as prosecutor and judge" while skipping the judicial system. Should everyone fighting an immigration or deportation case be able to request a jury trial? What about the military? Labor violations? EPA fines?
While I dislike poorly written laws (including those that work around some failing of our current "state" of government) and judges lacking accountability - this seems to be in the same league as the EPA Regulator Case[0] that's sitting at the Supreme Court right now.
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.
> 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
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.
> 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
As someone subject to a significant body of federal regulation on a technical subject, I would absolutely prefer to have those rules in the hands of the level-headed experts who currently control them rather than a bunch of loud-mouthed politicians - politicians who would still have to gun for votes every N years, and wouldn't bat an eye at doing so by turning technical rules they don't understand into culture war fodder. No thanks.
> 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
1. Those bureaucrats are appointed by the President, whom you vote for, and by Congress, whom you vote for, and may be fired by the former. If you don't like what the executive branch of the government looks like, I have great news for you - you elect your chief executive! And people you elect appoint his immediate underlings!
2. In 2022, I wouldn't hold my breath for congress to pass any laws. Half of congress governs under the explicit mandate that the people paying for their campaign should be above any law, and the other half governs under an implicit mandate to the same effect.
> Those bureaucrats are appointed by the President, whom you vote for, and by Congress, whom you vote for, and may be fired by the former.
I wish this was the case, but it is not: only a minuscule fraction of government bureaucrats is politically appointed. The people actually drafting the million pages of administrative regulations are overwhelmingly career bureaucrats, who are effectively unfireable.
> 2. In 2022, I wouldn't hold my breath for congress to pass any laws
The Congress does pass some laws, for things it cares about and where there is a broad agreement as to what the law should be. If the elected representative cannot get enough votes to pass a law, it most likely means that the law is not that important, or that there is no agreement on what it should be.
> The people actually drafting the million pages of administrative regulations are overwhelmingly career bureaucrats, who are effectively unfireable.
They report to the appointed heads of these agencies, who both sign off on their work, and have the power to either fire them, or reassign them, when they refuse to draft the regulations they are told to draft.
The reason they don't tend to get fired, is because they tend to do what they are told.
> If the elected representative cannot get enough votes to pass a law, it most likely means that the law is not that important, or that there is no agreement on what it should be.
I'm not even in the US and i know that's quite simply untrue. Almost every single issue gets split among party lines, regardless of its merits. Abortions, vaccinations, climate change combatting are supported by the majority of the population, yet no law on either can really be passed due to arcane rules and the refusal of one party to do anything that might benefit the other ( which is more interested in appearing right and not rocking the boat than actually doing anything).
You people need a revolution ( of the head chopping kind, or at least prison/exile) and a complete overhaul of your broken political system. There's no excuse to stick with the first past the post system, gerrymandered districts, voter disenfranchisement, electoral college and the pure temerity around it ( a candidate gets 5k votes more than the other in a state? All electoral votes from that state go to them! ?????) besides the "sanctity" of the current status quo your current political establishment espouses.
> Abortions, vaccinations, climate change combatting are supported by the majority of the population, yet no law on either can really be passed due to arcane rules and the refusal of one party to do anything that might benefit the other
This is an extremely simplistic, if not outright naive take. Majority might be for “combatting climate change”, sure, but when it comes to actual methods to do that, you’ll find that there is hardly a broad agreement as to what exactly should be done about it.
For example, I support carbon tax, but I’m against directly subsidizing solar/wind energy projects (as we do now). You’ll also find plenty of people who support both of these measures, and those who support only subsidies, but not direct carbon tax. What to do about it?
The current approach seems to be that the Congress, instead of talking it among themselves, making deals and reaching majority to pass a bill, just delegates the job away to bureaucrats in federal agency. As a result, in so many aspects of life, we are being ruled by unelected, unaccountable, nameless bureaucrats, who proclaim “rules” that no majority would ever support. What’s the point of democracy again?
There is, of course, another solution to this, that works much better in practice: getting federal government out of all of this, and leave these things to states, exactly as the authors of the system intended. You’ll observe that the states have much less troubles passing bills about protecting or prohibiting abortion, for example. Why must everything be ruled by federal government, which was never intended to be doing that?
Congress delegated this rule-making power to the executive. Congress is legally empowered to do this.
If you are unhappy about this, why won't you have congress undelegate this power? It is fully within its powers to do just that. You seem to believe that congress doing its job is the solution to this problem - why not solve it through congress doing its job?
Your first point is a little misleading. There's a portion of the administrative state that is filled via executive appointment, yes, however the vast majority are not. There's several hundred thousand semi-permanent positions that are held by career civil servants.
> Should everyone fighting an immigration or deportation case be able to request a jury trial?
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.
The UCMJ forbids military members from "contemptuous speech" against the President and others in the chain of command. They may have some Constitutional protections, but they're hardly identical to those of civilians.
Yes, they do. You absolutely give up freedom of speech and any rights of unreasonable search and seizure when you enlist. You don't give up every right, though. You still get the option of a jury trial whenever you want one. A commander's ability to levy administrative punishment relies on you opting in. You always have the option to seek court martial instead, the issue being they can levy much more severe punishments.
Military members still have freedom of speech rights. More tightly regulated in some instances than civilians, but the right isn't taken away. Even as a civilian there are restrictions on your freedom of speech.
Similar for the fourth amendment. There are exceptions for civilians, and a different set of exceptions for military members, based on government need.
The Constitution applies to all US citizens, military or not.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;
So are military courts going to close down since we’ve now ended the Afghanistan war? Or is that comma before “militia” going to mean that the time of war phrase is on for people who in a militia?
Whether or not we're in a time of public danger is definitely up for debate, but you can't just leave off the second condition in an or statement and pretend it doesn't exist when trying to claim the statement is false.
Yea I’m on mobile so didn’t want to deal with full quote, it I assumed public danger meant like martial law. Do you know of any precedent on that part?
> Or is that comma before “militia” going to mean that the time of war phrase is on for people who in a militia?
Findlaw (usually reasonably accurate) claims that is the case
> The protection of indictment by grand jury extends to all persons except those serving in the armed forces. All persons in the regular armed forces are subject to court martial rather than grand jury indictment or trial by jury.33 The exception’s limiting words when in actual service in time of war or public danger apply only to members of the militia, not to members of the regular armed forces.
Pretty sure it just means you can’t summarily execute a subordinate during peacetime.
During wartime disobeying a direct order is a serious offense (probably one of the most ‘infamous’ of offenses) but during peacetime you get to have a trial and more than likely not be shot.
The closest thing that's true is this: Constitutional rights are always weighed against some government interest, and there's a lot of deference to the military with regard to government interest. So there may be things on the margins which are unconstitutional in every or nearly every civilian case, but are constitutional in the context of the government's interest in national defense.
However, those rights still exist, and courts must still address those issues through the appropriate balancing test.
Right, but there are a lot of federal agencies that adjudicate and potentially give out harsh fines without actually being a court. If you are in that situation you do not have the right to a jury trial, at least until this case was decided.
That's not true for all civil cases, though. The Seventh Amendment says, "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, ..." As has been described elsewhere here, this was interpreted to provide a jury right in suits at law but not in equity. You can also waive your jury right by agreeing not to invoke it, say in a contract.
> Under Penal Code sections 17(d) and 19.8, if certain offenses are charged as an infraction instead of as a misdemeanor, you can ask that the infraction charge be tried with a jury as a misdemeanor.
about time! I think the common circuits are too far up their own ass to just take a fresh view at simply questions. 2nd circuit and 9th circuit just see too much action. Get a panel of judges from Texas and Louisiana for once (5th circuit) and they took a fresh view and came to an understanding that matches a plain reading of the constitution.
there were a lot of barriers to this occurring though, which is a bigger issue.
This reminds me (in somewhat the opposite direction) of the circular processes at the Federal Energy Regulatory Commission (FERC), which has broad powers over interstate electricity, hydro, and natural gas pipelines.
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.
Based on the summary, the title is backwards-ass wrong. The courts ruled that the SEC is effectively acting as legislative, judicial, and executive government, and the executive (enforcement) part is the only one that isn't unconstitutional for them.
I'd kill for mouse-over tooltips that let you get definitions of key terms. Turning inline references to numbered statutes and prior court rulings into links to said statues and judgements would be nice too.
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.
I have been waiting for this for months! Complete collapse of the US stock markets to follow.
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.
One thing to note is that SEC judges are considered ALJs (administrative law judges) and are "Inferior Officers of the United States”[2] within the meaning of the Constitution’s Appointments Clause [1].
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].
"The Dodd-Frank Act, which Congress passed after the 2008 financial crisis, expanded the SEC's ability to seek penalties in its administrative proceedings.
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."
"The Supreme Court is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process. The 5th is arguably the most conservative among the country’s dozen appeals courts." - https://www.washingtonpost.com/opinions/2021/08/31/5th-circu...
Exactly, when people get a decision they don’t like suddenly the courts are “unfair” and acting “rogue”. If your side agrees with it then it was the obvious and “logical/fair” ruling.
A fresh take from judges that barely get any action is something this nation needs. The conservative part is a distraction.
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.
> In keeping with Founding conceptions of separation of powers, the Supreme Court has made clear that Congress cannot “delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative.”
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.
> 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.
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.
I don't find conservative appellate judges to be doing anything extreme. I don't find this 5th circuit one to have done so, I don't find the Supreme Court to have done so.
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.
I don't understand how this is supposed to work or why we would believe it would work. Why would we want politicians haggling over the nitty gritty details of how to regulate, for example, pollution? Applying cost-benefit analysis to make rules for countless pollutants and toxins? When they themselves apparently would rather delegate this to experts?
Legally, it's a very flimsy basis on which to attack the current structure and operation of the country. It is simply untrue that Congress is not allowed to delegate its powers, and where to draw the line has always been a subjective judgment that different courts have drawn differently. https://constitution.findlaw.com/article1/annotation03.html
And frankly, I think the anti-administrative state people are on the payroll of polluters who want the regulators to be politicians who are more dependent on big business for funds.
Congress should be allowed to leave things to the experts if it wants to. After all, it is free to change the scope of regulatory agencies at any time.
You're in luck, my excerpt from today's court ruling is immediately followed by acknowledging more recent rulings.
> According to the Supreme Court’s more recent
formulations of that longstanding rule, Congress may grant regulatory
power to another entity only if it provides an “intelligible principle” by which
the recipient of the power can exercise it.
But then the hits just keep on coming
> We first conclude that Congress has delegated to the SEC what would
be legislative power absent a guiding intelligible principle.
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.