5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf](ca5.uscourts.gov) |
5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf](ca5.uscourts.gov) |
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.
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.
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.
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.
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.)
It's a well-known number. [1]
> 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.
[1] https://innocenceproject.org/guilty-pleas-on-the-rise-crimin....
[2] Going to trial with a public defender certainly qualifies as one.
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.
Quite liberal justices of the Supreme Court were nominated by Republicans (https://nymag.com/intelligencer/2019/07/john-paul-stevens-an...). To be fair, prolly still too soon to tell with Trump.
Also: https://www.google.com/search?q=site+nationalreview.com+9th+...
https://www.justice.gc.ca/eng/csj-sjc/just/12.html
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.
If > 90% of people are pressured into waiving the right, does the system actually provide this right?
That would seem like it falls under the legislative branch.
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.
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."
This isn’t relevant since they’d extended it many times. The whole “it’s about to expire!” thing was by design.
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.
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.
au contraire, in some opinions
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.
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.
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.
Says someone who hasn't run into a SpringBoot application ported almost verbatim to Python.
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.
One must wonder if its host nation-state had survived for longer, what iteration would be out in the wild.
"Eye for an eye" comes from the Book of Exodus, and it was meant not as a prescription, but as a limitation:
> The intent behind the principle was to restrict compensation to the value of the loss.[1]
But you’re wrong to argue the “court hasn’t done it”, because the court has been doing it all along. It’s called precedence.
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.
- "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.
The Fed wasn't even the first US central bank. The Founding Fathers (e.g., Morris, Hamilton) created them very early on:
* https://en.wikipedia.org/wiki/History_of_central_banking_in_...
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.
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.
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.
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.
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.
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.
> 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.
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.
> 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.
>cue laugh track<
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?
[1] https://www.pewresearch.org/fact-tank/2018/05/31/u-s-populat...
Imagine a world in which the Congressional Apportionment Amendment had been ratified in 1789. The House would have more than 6,000 members today. https://en.wikipedia.org/wiki/Congressional_Apportionment_Am...
[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.
[0]: https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_th...
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.
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.
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.
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.
For example, the Federal Reserve can assess fines without going to court, like: "Federal Reserve Fines Deutsche Bank $41 Million for Deficient Anti-Money Laundering Program" - https://www.wsj.com/articles/federal-reserve-fines-deutsche-...
Did the First Bank of the US have regulatory abilities and the ability to access civil fines?
https://en.wikipedia.org/wiki/First_Bank_of_the_United_State... says it "did not set monetary policy, regulate private banks, hold their excess reserves, or act as a lender of last resort", which would suggest the answer is "no".
If correct, that would mean it's not part of the "administrative state".
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?
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?
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.
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.
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.
https://constitution.findlaw.com/amendment5/annotation01.htm...
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.
EDIT: A cornerstone case to read, for those interested, is Parker v. Levy: https://supreme.justia.com/cases/federal/us/417/733/
Incidentally I did find an answer to your previous question (about who the clause applies to), pasted it above.