Bad and Worse Ways for the Government to Lose the SEC SCOTUS Case


Last week the Supreme Court heard oral argument in Securities and Exchange Commission (SEC) v. Jarkesy, a case that involves three independent challenges to the administrative state. Somewhat surprisingly, the Justices asked no questions about one of the issues and only one short question about a second issue. Nearly the entire two-plus hours of argument were spent on the question whether proceedings to enforce the nation’s securities laws before an Administrative Law Judge (ALJ) inside the SEC violate the Constitution’s Seventh Amendment right to a jury trial in civil “suits at common law.” Although one can never be certain of the outcome based on the questions asked at oral argument, the Court’s conservative super-majority seemed receptive to the Seventh Amendment rights claim of the respondents.

In an essay on the Dorf on Law blog last week, I explained why the Supreme Court should reject the Seventh Amendment claim, even as I acknowledged that a majority probably will accept it. To oversimplify, longstanding precedent dating back to the nineteenth century recognizes the power of Congress to assign to administrative adjudication without juries some categories of civil cases in which the government is a party. As I noted on my blog, although the respondents’ attorney claimed that his clients were objecting only to a narrow category of SEC actions, the logic of his argument threatens a potentially wide swath of agency adjudication.

To be sure, even under the respondents’ theory, a great many adjudications could continue to be heard by ALJs. Everyone acknowledges that parties seeking money from the government have no right to a civil jury. Thus, for example, ALJs within the Social Security Administration could continue to adjudicate more than half a million hearings and appeals each year. However, even recognizing this and other carveouts, a ruling against the government on Seventh Amendment grounds would be highly disruptive.

Although enforcement actions like the one that the SEC pursued against Jarkesy within the agency could, in the future, be brought in federal district court, some of the other federal agencies that enforce federal law lack statutory authority to sue in federal court. Therefore, should Jarkesy win on Seventh Amendment grounds, enforcement would be hamstrung unless and until Congress amended the law. Given the anti-regulatory druthers of the Republican-controlled House of Representatives, that might not happen. And even if it does, a flood of new cases could strain the federal district courts’ capacity.

In light of the looming crisis in administration of federal law, what can be done? Ideally, the Court would simply reverse the U.S. Court of Appeals for the Fifth Circuit and uphold the current system of ALJ adjudication. But if the conservative super-majority is looking to strike a blow against the administrative state in Jarkesy, it would be better—or at least less bad—if it did so by upholding one of the other challenges.

The Frivolous Nondelegation Challenge

One of those other challenges should be rejected out of hand. In two 1935 cases—Panama Refining Co. v. Ryan and A. L. A. Schechter Poultry Corp. v. United States—the Supreme Court struck down federal statutes on the ground that Congress had impermissibly delegated its lawmaking power in violation of the Constitution’s Article I, which vests legislative power in Congress. In the ensuing 88 years, however, the Court has rejected every similar such challenge. Under the post-New Deal version of the nondelegation doctrine, Congress may delegate to an administrative agency what might look like legislative power, so long as it provides an “intelligible principle” to guide the agency.

In practice, that constraint is virtually toothless, however, as the Court has construed even very vague delegations as stating sufficiently intelligible principles to ensure that agencies carry out Congress’s policy choices rather than merely inventing their own. For example, in the 1943 case of National Broadcasting Co., Inc. v. United States, the Court rejected a nondelegation challenge to the federal statute authorizing the Federal Communications Commission to decide whether to grant broadcasting licenses based on its evaluation of the “public interest, convenience, or necessity.” The Court said that, in light of the overall purpose of the Act, its other requirements, and the statutory context, the delegation was permissible. For decades, similar rulings followed.

In recent years, however, various conservative Justices have indicated that they wish to tighten the intelligible principle requirement and thus to require Congress to specify more precisely how agencies employ their delegated power. In the 2019 case of Gundy v. United States, four Justices expressly stated their eagerness to revisit the intelligible principle test, which Justice Neil Gorsuch, writing in a dissent joined by Chief Justice John Roberts and Justice Clarence Thomas, said “has no basis in the original meaning of the Constitution” or pre-New Deal history.

Meanwhile, in another line of recent cases, the Court has used the “major questions” doctrine to accomplish as a matter of statutory interpretation much of the work that a reinvigorated nondelegation doctrine would do as a matter of constitutional law. By rejecting agency actions addressing important matters absent express and detailed statutory authority, the major questions doctrine—like a robust nondelegation doctrine—effectively requires Congress to give an agency precise authorization for its exercise of regulatory power.

In light of these rumblings, one might think that the Roberts Court’s conservative super-majority would be keen to affirm the Fifth Circuit’s determination in Jarkesy that the grant of power to the SEC violates the nondelegation doctrine. But none of the Justices expressed any interest in the nondelegation issue during oral argument.

And for good reason. The Fifth Circuit’s nondelegation holding was preposterous—even assuming the nondelegation doctrine should be substantially strengthened. The appeals court held that Congress violated the nondelegation doctrine by failing to provide any standard (much less an intelligible one) for the SEC to use in determining which enforcement actions to pursue within the agency and which to pursue via lawsuit in federal court. The court said that in deciding between venues, the SEC exercised unguided legislative power, rejecting the SEC’s much more sensible view that such judgments are executive in nature—akin to any other exercise of prosecutorial discretion, including whether to bring an enforcement action at all.

It is possible, even likely, that the Roberts Court will revive and strengthen the nondelegation doctrine. However, it will not do so in the Jarkesy case. One must therefore hope that, if the Court affirms the Fifth Circuit on one of the other grounds, the Court makes clear that that court’s nondelegation holding is wrong. Otherwise, it will remain the law in the Fifth Circuit, where it could work considerable mischief.

Losing on Removal Grounds Could be the Least Bad Way to Lose

What about the third constitutional issue presented in Jarkesy? In the 2010 case of Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB), the Supreme Court invalidated the delegation of executive power to federal officers who could only be removed from their positions for good cause by other federal officers who in turn could only be removed from their positions for good cause. Although the Court had previously allowed that Congress could insulate some federal officers from direct presidential oversight by permitting their removal only upon a showing of good cause—thus upholding so-called independent agencies—providing two such layers of insulation, the Court said in Free Enterprise Fund, was “contrary to Article II’s vesting of the executive power in the President.”

ALJs in the SEC also enjoy two layers of good-cause removal protection. Thus, the respondents in Jarkesy argue and the Fifth Circuit agreed, adjudications before them are unconstitutional.

Case closed, right? Well, not exactly. In a footnote in Free Enterprise Fund, the Court stated that it was reserving the question whether two layers of good-cause removal protection would be valid for ALJs. One reason the Court gave for potentially distinguishing ALJs is that there was a dispute over whether they are even “Officers of the United States” who exercise significant government power, rather than mere employees. That dispute has been resolved. In the 2021 case of United States v. Arthrex, the Court held that Administrative Patent Judges (APJs) are principal officers; although there are some differences between APJs and ALJs, Arthrex pretty clearly implies that ALJs are at least inferior officers to whom the Free Enterprise Fund rule would apply unless inapplicable on some other ground.

The footnote did, however, give two other grounds for thinking that the no-two-layer rule might not apply to ALJs. It stated that “many administrative law judges . . . perform adjudicative rather than enforcement or policymaking functions . . . or possess purely recommendatory powers.”

Why might the adjudicatory role of ALJs take them outside the Free Enterprise Fund prohibition on two layers of good-cause removal protection? For two reasons. First, just as the Constitution ensures independence for the Article III judiciary so that judges decide cases based on the law and the facts, so there is a strong functional justification for insulating adjudicators from direct political influence. Second, insofar as ALJs exercise adjudicatory rather than executive power, there is less reason to worry that the two layers of insulation from removal by the President undercut Article II’s vesting of executive power in the President.

Meanwhile, ALJs may be thought to “possess purely recommendatory powers” because their rulings are not self-executing and need not be implemented by the agency. In the SEC, ALJ rulings are “subject to de novo review by the Commission, which may affirm, reverse, modify, set aside, or remand for further proceedings.” Consequently, the real power lies with the commissioners of the SEC, who enjoy only one layer of good-cause removal protection, in compliance with the Free Enterprise Fund rule.

These points are persuasive—although they are in some tension with one another. Insulating ALJs from removal absent good cause enables them to adjudicate according to the facts and the law, but making their decisions subject to de novo review renders that protection largely ineffective. That oddity aside, however, at least one of the distinctions noted in the Free Enterprise Fund footnote should suffice to take ALJs outside of the case’s general rule.

Nonetheless, if the government has to lose in Jarkesy, it would be better to lose based on the removal issue than based on the Seventh Amendment issue. As noted above, a Seventh Amendment holding could substantially disrupt federal law enforcement in other contexts. By contrast, a ruling that the two layers of removal protection for ALJs violates Article II would have limited consequences. Although the respondents argue that this feature of the legislation should void all ALJ decisions, that is not the appropriate remedy.

In Free Enterprise Fund itself, the Court remedied the removal power violation by rendering members of the PCAOB removable at will by the SEC. It could do the same thing here—making ALJs removable at will by the SEC. Although such a ruling would undercut ALJ independence, such independence has limited value given the availability of de novo review.

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To be clear, the Supreme Court should reverse the Fifth Circuit’s judgment in its entirety and reject all three constitutional challenges. But if the conservative Justices are determined to strike a blow against the administrative state in Jarkesy, they would do the least damage by relying on the removal argument, not the Seventh Amendment claim and certainly not the nondelegation claim. With this Supreme Court, the least damage is often the best one can hope for.

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