This fall, the Supreme Court will hear several cases affording promising opportunities to rein in the federal administrative state. The court has agreed to decide cases that challenge the practice of federal courts showing judicial deference to agency interpretations of the laws they are charged with enforcing as well as the constitutionality of an agency funding scheme that’s free from the congressional appropriations process and regular congressional oversight.
The court also has agreed to hear a case that may restore one of the greatest innovations of free people—the jury trial—to a whole class of civil cases currently prosecuted by administrative agencies and presided over solely by judges employed by those agencies. The potential of SEC v. Jarkesy to instate the right to a jury trial in administrative civil cases could make it one of the most consequential cases of the upcoming term.
The case was brought by George Jarkesy, a hedge fund manager who the U.S. Securities and Exchange Commission accused of overestimating the value of some of his assets and making false claims. The SEC chose to pursue Jarkesy through its internal, juryless adjudication process in which a SEC-appointed administrative law judge assessed the sufficiency of the evidence against him.
The Seventh Amendment to the Constitution explicitly requires, “In Suits at common law … the right of trial by jury shall be preserved.” Fraud is a long-recognized common law crime. Yet, under current practice, the SEC can enforce securities laws and seek a civil penalty for fraud in juryless proceedings. In proceedings like Jarkesy’s, the government is seemingly exercising authority in a suit of common law, but by conducting the prosecution outside traditional courtrooms, it believes it can deprive the accused of the protections of a jury trial.
www.dailysignal.com/2023/07/28/reining-regulatory-agency-fiefdoms-dose-democracy/