At Law & Liberty, Alison Somin (Pacific Legal Foundation) & Oliver Dunford (Pacific Legal Foundation): Jarkesy and Chicken Little Law Professors. From the introduction:
Just about every time a case involving the administrative state heads to the Supreme Court, we’re subjected to hysterical warnings of the end of the world. A recent piece in The Atlantic might set a new standard for apocalyptic fearmongering. NYU Law Professor Noah Rosenblum frets that what he calls a garden-variety securities fraud case could “destroy the government.” And that’s just the title! The hyperbole and question-begging continue throughout.
The sky-is-falling case—Securities and Exchange Commission v. Jarkesy—raises many interesting and contentious issues about the Constitution’s separation of powers. And Prof. Rosenblum is plenty contentious. But he gets the big picture wrong. In his zeal to show how dumb and simple and misguided “right-wing activists” are, he ignores the “declared purpose” of the separation of powers—to “diffuse power the better to secure liberty,” a point Justice Kavanaugh made during oral argument. Prof. Rosenblum looks only at what the government can (theoretically) do for us; he ignores what it can (in practice) do to us. Prof. Rosenblum’s screed also ignores the biggest issue in the case.
And from later on:
Predictably, the SEC’s ALJ [administrative law judge] ruled in favor of the SEC [in Jarkesy's case]. Mr. Jarkesy’s only option was to appeal—to the SEC itself. And, just as predictably, the SEC concluded that SEC’s enforcement employees successfully proved their case and that the SEC-employed ALJ correctly ruled for the SEC.
Only after this process was complete was Mr. Jarkesy allowed to petition a court of law for review. Mr. Jarkesy challenged both the SEC’s substantive decision and the constitutionality of the SEC’s process. Or, as Prof. Rosenblum would have it, Mr. Jarkesy responded with “chutzpah. He didn’t just contest the SEC’s ruling; he alleged that the SEC’s entire process against him was unconstitutional.”
The nerve of that Jarkesy fellow! Who does he think he is?! How could he possibly object to a process, in which an agency acts as rule-maker, prosecutor, judge, jury, and appellate court?
From the conclusion:
The Jarkesy case reveals the erosion of the barriers between the government’s powers and the resulting restrictions on liberties—liberties that triggered the American Revolution. In the Declaration of Independence, among the charges lodged against George III:
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- He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
- He has erected a multitude of New Offices, and sent hither swarms of Officers to [harass] our people, and eat out their substance.
- For depriving us in many cases, of the benefits of Trial by Jury.
These wrongs were addressed through the government’s separation of powers and the guarantee preserved by the Seventh Amendment. Far from “destroying” the government, a win for Mr. Jarkesy would represent a modest step in favor of limited government.
Posted at 6:39 AM