https://www.vox.com/2022/5/19/23130569/jarkesy-fifth-circuit…
“The United States Court of Appeals for the Fifth Circuit’s decision in Jarkesy v. SEC would dismantle much of the system the federal government uses to enforce longstanding laws.”
VERY macro effects.
This is from the Federalist Society’s fringe, but the idea goes all the way back to conservative revulsion at the New Deal.
The crux is the idea that only Congress can specify law, and that it cannot delegate the elaboration of the specifics of law to an adminstrative structure with enforcement through administrative law. The argument is perfectly sane in detail and totally insane in application. What I mean by that is that modern society is so complicated that it is impossible for a law making body like Congress to specify and constantly update what a law means in detail.
The fascinating thing about canceling the structure of administrative law is that it would literally end the USA government as we know it. This has been a goal of libertarians forever, but not of most of the rest of the conservative bloc.
However, with our currenty SCOTUS run by its strange coalition dominated by radical new appointees working with Justice Thomas it is perfectly possible that such a dire thing would come to pass, accompanied by much handwaving about how that is not what they are really doing…
What sort of investments would be clobbered by such a revolution, and what others would thrive? That is a briar patch I invite all to contemplate and post opinions.
Here is an excellent sympathetic summary of the anti-administrative law argument and some of the structure in peril: https://rb.gy/boqapb
and here is the wikipedia summary: https://en.wikipedia.org/wiki/Administrative_law
david fb
Looking at the facts in the article, while ignoring the “SHOCKING!!!ALARMING!!!” hysteria:
First, Elrod claims that securities fraud cases must be heard by district courts because these courts can conduct jury trials, while ALJs cannot.
The 6th amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
https://en.wikipedia.org/wiki/United_States_Bill_of_Rights
In this case, the issue is fraud. Fraud is a crime. Ask Bernie Maddoff.
Federal Securities Fraud
Under the Securities Act of 1933 and the Securities Exchange Act of 1934, Securities Fraud is defined as willfully engaging in deceptive practices intended to manipulate financial markets or induce investors to make financial investment decisions based on deceptive or false information.
Under federal law, the crime of Securities Fraud is a Class C felony, punishable by up to twenty years in prison, three years of supervised release, and $5 million in fines. Additionally, disgorgement of any profits will be ordered and any property obtained from the proceeds of the offense can be confiscated.
https://www.richardhornsby.com/federal/crimes/securities-fra…
Therefore, I think the accused has a point.
(sweeping away more SHOCKING!!!ALARMING!!! hysteria in the article)
So, reassign the ALJs to the appropriate district courts which have juries, or provide juries for the ALJs. Either would satisfy the Constitution, and there would not be the apocalypse the article has an apoplectic fit about. The ALJs may not like losing their cush lifetime job by going to District Court, but, if it’s unconstitutional, they really don’t have a choice.
Requiring a jury for every proceeding would raise costs, and result in a heck of a lot more people pulling jury duty, but, that is what the Constitution requires.
Steve
What I mean by that is that modern society is so complicated that it is impossible for a law making body like Congress to specify and constantly update what a law means in detail.
Leaving ‘We The People’ at the mercy of a bunch of unaccountable burrocrats! Redress is necessary.
The high level of corruption in Venezuela is aided and abetted by the above kind of delegation, the ‘interpretation’ of the law by ‘functionarios.’ The question of the day, “How much for that?”
The Captain
Leaving ‘We The People’ at the mercy of a bunch of unaccountable burrocrats! Redress is necessary.
It is this way for a very good reason. Congress passes LAWS but they absolutely do not have the time or ability to write the necessary regulations to actually implement those laws. We live in a very complex society. Congress has the ultimate say, but no way are they going to be doing all the nitty gritty little details necessary to IMPLEMENT the regs for the laws they pass.
And, of course, the ‘burrocrats’ (cheap shot) are accountable to Congress and Congress does have the final say.
And, of course, the ‘burrocrats’ (cheap shot) …
“Burrocrats” happen to be a VERY EXPENSIVE SHOT!
It is this way for a very good reason.
That is not a good enough reason to let them run wild with crazy agendas. Every agency should have a “Shut down by DATE!”
The Captain
And of course you are not an expert on the United States constitution as you so eloquently pointed out, and do not have any skin in the game so really have no clue about this at all.
Andy
Congress clearly delegates authority to others and has since the beginning.
George Washington decided how and when to prosecute the war, he didn’t wait for orders from Philadelphia.
More to the point, the very first Congress set up the Department of War, with Henry Knox at its head, and George Washington signed the bill into law - creating (gasp) actual bureaucrats who would decide on the minutiae of running such a department, since Congress could obviously not be bothered with deciding how many musket balls to order, how many pads of paper, etc. Congress has been delegating authority to run departments - within the purview of the law they establish - since the foundation of the Republic.
And frankly, anyone who thinks it could be otherwise is a damned fool.
Maybe not a fool but an anarchist. It seems that it used to be small government and now it’s no government and no experts. Well if that is the case all we have is anarchy. Anarchy were anyone with an opinion is considered an expert and anyone with a gun can lay down the law.
Andy
Skin in the game? How many countries have you invaded or sanctioned lately, The whole world has skin in the game!
The Captain
Steve, the Supreme Court agrees with you.
The justices ruled in a 6-3 vote that people accused of fraud by the SEC, which regulates securities markets, have the right to a jury trial in federal court. The in-house proceedings the SEC has used in some civil fraud complaints violate the Constitution, the court said…
The appeals court found that the SEC’s case against Jarkesy, resulting in a $300,000 civil fine and the repayment of $680,000 in allegedly ill-gotten gains, should have been heard in a federal court instead of before one of the SEC’s administrative law judges.
Jarkesy’s lawyers noted that the SEC wins almost all the cases it brings in front of the administrative law judges but only about 60% of cases tried in federal court.
DB2