The Supreme Court Has Figured Out How to Gut a Bunch of Crucial Federal Laws at Once

[In It to Win It]

The Supreme Court Has Figured Out How to Gut a Bunch of Crucial Federal Laws at Once

Photo illustration by Slate. Photos by Joe Raedle/Getty Images and Unsplash.


The catastrophe that unfolded at the Supreme Court on Wednesday morning was so suffused with infuriating bad faith that even Justice Elena Kagan, the model of a disciplined jurist, could not stand it. For nearly 50 years, Kagan declared, “no one has had the chutzpah” to make the argument before the court that the Securities and Exchange Commission had no right to fine wrongdoers—an anti-historical, anti-textual theory that would hobble the federal government’s ability to enforce statutes that protect the public from harm. No one, that is, until Wednesday, when six conservative justices lined up to endorse the theory, telegraphing their intention to kneecap the SEC and other agencies that impose regulations against lawbreakers.

The case, Jarkesy v. SEC, is complicated in the details but pretty simple in the end. It asks whether federal agencies can continue to do something that they’ve done for more than a century and that no court (including SCOTUS) has ever forbidden: adjudicate the government’s claims against a private party for violating “public rights” established by Congress. Do you think that securities fraud, consumer scams, environmental crimes, labor violations, and a ton of other misdeeds should be efficiently and consistently penalized? Then you are out of luck, because the Supreme Court is poised to strip much of that enforcement power from the federal government.

George Jarkesy’s case provides an unsympathetic vehicle for this long-standing conservative project. A right-wing talk-radio host, Jarkesy created two hedge funds that managed $24 million in assets. He and his firm lied to their 120 investors about where their money was going while dramatically overvaluing holdings to justify extortionist management fees. The SEC launched an administrative proceeding, adjudicated before an administrative law judge at the agency, and prevailed. The agency fined Jarkesy $300,000, barred him from participation in the securities industry, and ordered him to give up nearly $685,000 in unlawful gains.

This kind of thing happens every day across the government. It’s a key foundation of federal law enforcement, one of Congress’ favored methods of protecting the American people. Yet Jarkesy argued that the entire process was unconstitutional. He raised three challenges: First, he argued that the SEC’s adjudication violated his Seventh Amendment right to a jury trial; second, that the administrative law judge’s independence violates the president’s executive authority; and third, that the SEC’s ability to decide where it would bring the case—within the agency or in federal court—violates the nondelegation doctrine. The U.S. Court of Appeals for the 5th Circuit endorsed all three claims in an opinion that proudly flouted multiple, unbroken lines of Supreme Court precedent.

[Irish_Dem]

1. The goal is to break up the US federal government. To become 50 nation states.

In essence break apart the US, in the same way the USSR disintegrated.

The plan is going quite well.

[turbinetree]

2. And the american public wonders why the country is going down into a third world state

look no further than right wing Federalist Society judges being placed ion the bench......and also going back to the Louis Powell doctrine/ letter and his rulings .......and then having him replace Abe Fortas ..............and if the public hasn't figured out ...then they really are stupid ......

[slightlv]

3. I have such heartburn where SCOTUS

Is concerned. Stripping women's human rights wasn't important enough for them to do anything, altho Congress brought suggestions to the administration.

Maybe this will light a fire under somebody. Yes I know... fight for dems in the next election everywhere, up and down ticket. Doesn't change the fact there were things that could have been done b4 repugs took over the House. Suggestions were made. Biden said no. And anyone ever hear from that commission? Vote, yes... but it sure didn't help us women when push came to shove. Makes a great democratic campaign talking point, tho.

Yes. I'm disillusioned. Just like anyone could see what was coming Jan 6, women losing our human rights was on the wall in plain language. Everyone just kept telling us we were hysterical. Maybe with all depts no longer able to enforce laws it'll have an effect?

This ought to be an obvious no go. Congress makes laws, Executive enforces via the Constitution. So how can the Judiciary strip the Executive of one of its main functions?

[Hekate]

7. Recall that before SCOTUS got around to women they gutted the Voting Rights Act ...

Signaling other key Civil Rights cases were on the block.

Then they overthrew Roe and signaled that everything passed as “privacy” was on the block.

Loathsome *holes.

[Bludogdem]

4. So the end result

Is that federal agencies would be required to convince a jury of wrongdoing in a court of law. A requirement of the seventh amendment. And that’s a problem?

[In It to Win It]

5. It seems like the argument is that the 7th amendment

is specific to "suits at common law", and I guess SCOTUS could ignore or minimize that part of the text in the 7th amendment because this case arose from enforcement of a statute, and cases arising from a statute aren't considered "suits at common law."

Admittedly I haven't done a deep dive into the case. I just read a brief summary about it.

[pfitz59]

6. Cost in time and resources.

Administrative courts clear thousands of cases a year. Across all federal agencies. If this precedent fails, the federal courts will grind to a halt with a thousand trumps all demanding juried trials for each and every indictment. The rule of law will become a morass of never-ending appeals and countersuits.

[Bludogdem]

9. I don't expect

There would be a huge number of jury trial requests for the type of civil violation and enforcement for these agencies actions. Most of these are corporate and corporations don’t like unpredictable juries. It is, however, appropriate to honor a jury trial request given that the 7th amendment exists and is law of the land.

[Arazi]

8. Huge and important story. K&R