Of the major cases the US Supreme Court has heard this term, one that might not have gotten as much attention as it should have, is SEC versus Jarkesy. The court heard oral arguments at the end of November, 2023. The case goes to the question of whether or not administrative agencies have the ability to use administrative courts with administrative law judges rather than those that are under the Third Article of the constitution to enforce their regulations and rulings.
The case is broadly seen as getting to the heart of separation of powers. increasingly executive agencies have found ways to concentrate power within themselves and not having to deal with the other branches of government.
The appeal filed held the argument that using administrative judges violates the constitution. The filing stated that the executive using its own judges to rule effectively meant that there was no oversight of the executive agencies that were pressuring the charges.
It also noted that the 7th Amendment of the Constitution gives the defendant the right of a trial by jury. For any civil damages that are greater than $20 one can also seek a jury. Executive agencies using their own courts have consistently refused to allow juries to be used.
The fifth Circuit Court of Appeals sided with the plaintiff that this use of tribunals violated not only the right to a jury but also that it raised questions about separation of powers. This is the bigger case that comes out of an increasing number of litigations.
This is just the first case coming up through the courts. There are a handful of others that are still at lower levels that are fully expected to be appealed at least the federal level if not all the way to the Supreme court. All of them deal broadly with the same issue of how much power executive agencies have to both draft their own rules and then enforce those rules.
Administrative agencies have long used the defense that jury trials are only pertinent within civil common law filings. That is disputes between two members of the public. When a federal agency issues a ruling it’s outside that jurisdiction. Something of an analogy would be like getting a traffic ticket.
The problem is the scope of administrative courts being used has greatly expanded recently. Not just the SEC but other agencies such as the Environmental Protection Agency or the Federal Communications Commission also have increasingly relied on in-house courts. The usual argument is that this is where most of the expertise in the field lies. It’s better to have cases ruled on by experts rather than by members of the general public.
The situation however goes to a much bigger issue that has been developing. Most of these agencies have increasingly been drafting their own regulations for a long time now. Congress has conceded much of its legislative authority for decades in these areas. A number of these agencies are now in the situation of being the legislature, the executive, and the judiciary all wrapped into one. There is no way that anybody drafting the Constitution ever would have signed off on this kind of power concentration.
A big part of the untold history of governing for the last 50 years has been executive branch agencies trying to find ways to skirt having democratic or judicial oversight. The formal argument that experts are better placed to make the better choice ignores that in reality it is usually a way to ensure you don’t have to make compromises or listen to opposing viewpoints. Concentrating power is almost always a way to simply ensure that you get to impose your own will.
During the debates on the Constitution a lot of time was spent on what the role of juries and trials should be in the first place. One colony, Pennsylvania, had used juries for almost every form of litigation that there was. The argument that using citizens to define legal concepts not only meant that they would understand what the law meant but it worked as something of a mediator between those who would make the laws and those who had to follow them. It was a form of consent towards the governing elite. It also served as an important check on those in office and those not enforcing constant conversation between the two to continue. The elected officials couldn’t isolate themselves the way that has increasingly been happening now.
The natural inclination of those who serve administrative agencies who cry too much democracy in certain aspects are guilty of the same Vice all too many in power end up getting. the wish to try and consolidate their own authority. The Jarkesy Case might simply be the first that starts to question this, but hopefully the Court’s generic direction of the last few years continues and it curtails what has started to become an out of control concentration of power.
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