U.S. Supreme Court: Post-Ginsburg Edition

John Yoo can shampoo my crotch

It was second time in a week that Thomas has decried declining respect for “institutions”

there is no god or this fuck would have been struck dead there and then

i don't know where to put this so i'm putting it here
seems bad

This seems like a pretty consequential decision https://t.co/DiyNjlygtt pic.twitter.com/ghlsYyvdl8

— John P. Collins (@prof_jpc) May 18, 2022

On its face, I'm not sure why requiring a jury trial for securities fraud actions is per se bad. I can see how it might have negative practical implications for prosecutions, but it's hard for me to formulate why securities fraud should be different than anything else in that regard.

fucking hell. the constitutional theory applied in that 5th Circuit opinion would basically destroy all federal regulatory agencies. these radical judges are dead set on dragging the nation back into the 19th century.

That is the goal, yes.

i am not done reading it (also too tired to finish today tbh) but i don't understand why it's not a "public right." my understanding of administrative law is poor tbh. even though i technically practice it. haha. ha. there was another 5th cir. case with some big implications recently too but i forgot what it was.

tbh tbh

The quote shown in the tweet cited three arguments and "right to a jury trial" was easily the least radical one. None of the three cited arguments was rejected as inapplicable or incorrect.

The most radical argument was the court's apparent acceptance of the plaintiff's interpretation of language in the constitution stating Congress is granted "all" legislative power as meaning that the SEC is unconstitutionally creating law by enforcing regulations not passed by Congress. Requiring Congress to explicitly pass all the regulations directly, as legislation, would invalidate every current regulation and replace them with chaos.

yeah i think (2) and (3) are more important. the vast majority of cases do not even reach administrative litigation. i do not believe that the ruling (or a consistent future supreme court ruling) will invalidate every regulation that exists--unfortunately there are other coming cases about the ability of agencies to regulate that will be even worse. (there are also statutes for a lot of things that agencies do and regulated entities will still want to negotiate before complaints are filed.) anyway it's not just this one case, it's part of a larger project. the other case i'm thinking of had to do with an agency not having the authority to decide to withhold records in a FOIA request because the commissioners can't be removed by the president, which is the same issue addressed in (3). weird that no one has to assert that there would be any reason to remove them. it seems to have nothing to do with the case itself. but it looks like we are headed for a system where all ALJs/commissioners are appointed by the current president which will be not great. well maybe it'll be ok since everything has to be filed in federal district court....

Emasculating the regulatory state has been the GOP goal since Reagan.

And given rocket fuel in the Trump era by rebranding it as The Deep State.

what happens now after the 5th Circuit Court of Appeals ruling?

i'm so confused by these things always

It does sound like maybe it has broader implications. I never took admin law and I hate it even more than con law (it's really a subset of con law I guess). It's like con law for people who felt like con law wasn't nerdy enough.

I also hate anything that discusses "common law rights."

Conservatives are very invested in Medieval English jurisprudence.

Meanwhile, what will probably happen here is that the SEC will appeal for an en banc ruling from the full court. But being the 5th circuit, probably that will go the same way. So then they will appeal to SCOTUS, and that will obviously go great.

If the issue is whether/when administrative tribunals can enforce regulations against specific offenders, I just find it hard to believe that there isn't already exhaustive jurisprudence on this subject, so I'm wondering how there's a novel issue here.

That might have mattered to the old federal courts, but we're pretty clearly in the Judge Dredd phase of right-wing legal theory.

The novelty here is that the opinion finds its basis in a novel interpretation of the constitution, which it pretends to find persuasive enough to overthrow the previous exhaustive jurisprudence on this subject.

This is the argument of the Federalist Society types, in re the last 100 years or so of legal precedent.

https://i.gifer.com/69qw.gif

Yeah, I think parsing these decisions for some sort of precedence or basis is a waste of time. They will just change it next time if it suits them.

The most radical argument was the court's apparent acceptance of the plaintiff's interpretation of language in the constitution stating Congress is granted "all" legislative power as meaning that the SEC is unconstitutionally creating law by enforcing regulations not passed by Congress. Requiring Congress to explicitly pass all the regulations directly, as legislation, would invalidate every current regulation and replace them with chaos.

― more difficult than I look (Aimless), Wednesday, 18 May 2022 22:27 (yesterday) link

I read the opinion and this is not what it says at all.

then there's nothing to worry about, I guess

levine breaks it down well afaict

https://archive.ph/5TuRV

The conservative threat to regulatory agencies is very real, I just don't see how this particular decision really makes any difference. It removes the power of the SEC to decide at will when to prosecute before an ALJ vs a jury trial, which right was only granted to the SEC in 2010, and it seems like there's a pretty good argument that this power wasn't delegated properly. It doesn't alter the SEC or any other agency's ability to bring enforcement actions.
I don't even think it alters the ability of other agencies to enforce via ALJs/administrative tribunals.

I don't know what "exhaustive jurisprudence" you're referring to that it "overthrows," Aimless. I don't know what "novel interpretation of the constitution" is present in the opinion either. Can you point to what you're referring to?

I mean it's not lost on me that conservative legal strategy is often incremental, I'm just not sure I even see an incremental victory here.

I don't know what "novel interpretation of the constitution" is present in the opinion either.

From reading caek's link I have learned that this novel interpretation is called the nondelegation doctrine and it has been raised often in the past as an objection to federal regulatory regimes and consistently rejected for about the past 85 years.

that isn't novel but whatever

i think it will have implications for other agencies. not the jury trial thing but the other two. regarding jury trials i am confused about 2010 because i don't understand the difference between civil penalties for securities fraud pre- and post-dodd-frank. didn't they exist?

yeah even I'm not sure about that and this is not super far away from my area of practice. I'm p sure there were always civil penalties, but I think Dodd Frank may have just given the SEC the right to have its own ALJs hear the cases rather than juries. And tbh that doesn't seem like the greatest idea to me.

I can think of plenty of nefarious ways that sort of delegation could be used by a conservative administration too.

The opinion didn't require citation of the nondelegation doctrine to find in favor of the plaintiff. The constitutional right to jury trial was more than sufficient grounds and wouldn't raise any alarms.

they didn't find in favor of "the plaintiff"

and my use of the wrong terminology matters in what way to my point?

The basis on which they found improper delegation strikes me as exceedingly narrow and relatively easy to remedy if Congress actually wanted to. Certainly I get that the fact that the doctrine came up at all, even in the most tiny way, might raise some eyebrows. So far I'm not seeing how it's the narrow end of a wedge or anything, but that doesn't mean it isn't, there are a lot of clever motherfuckers in the conservative legal sphere.

Aimless you don’t have to be an expert on everything

easy to remedy if Congress actually wanted to

You know that Manchin and Sinema will agree? It's not easy for this Congress

https://www.vox.com/2022/5/19/23130569/jarkesy-fifth-circuit-sec

Man Alive, here's another article suggesting this is a bigger deal than you think

The US Supreme Court agreed May 16 to take a look at a narrower case out of the Fifth Circuit regarding which courts have jurisdiction to hear challenges to the agency’s administrative law judges. The CPA in that case also challenged the in-house judges’ protections against removal.

...Other circuit courts ruled similarly on the jurisdiction question until the Fifth Circuit’s December 2021 en banc opinion in CPA Michelle Cochran’s case. The full court, in a 9-7 decision, determined federal securities laws don’t actually strip lower courts of jurisdiction to hear constitutional challenges like hers and Jarkesy’s.

The SEC pointed to the D.C. Circuit’s Jarkesy opinion—along with similar opinions in the Second, Fourth, Seventh, and Eleventh circuits—as evidence of a circuit split when it petitioned the Supreme Court for review in Cochran.

https://news.bloomberglaw.com/securities-law/sec-in-house-hearing-violates-jury-trial-right-fifth-cir-says

Milheiser's explanation of the overall arc of this situation maps very well my ad law/con law education.

"Emasculating the regulatory state has been the GOP goal since Reagan" maps perfectly to my observations (tho tbh, also my priors). I said an almost this exact sentence to my accomplished corporate lawyer brother-in-law in about 2004, got a grim shrug back. As with Roe, the situation for execution is v good.

i am beginning to think about this a little bit more clearly bc i think it actually affects something i am working on irl. one thing that is dumb about this is that in jarkesy they opined about the ALJ removal issue but did not rely on it to vacate the judgment. they said they didn't know what the remedy should be if that was the only issue. which is also weird because if the ruling is that the judgment is vacated because it should have been filed in federal district court there is no issue with the ALJ! it shouldn't have even been part of the opinion. i don't expect the supreme court is going to care about that.

Ha, that makes it dicta. Obiter dictum? Whatever it’s called. I should read it to understand better.

Random aside: Orbiter Dicta will be my law nerds spacerock band name.

Opening for Stare Decisis soon.

👍

Starry Decisis

i am beginning to think about this a little bit more clearly bc i think it actually affects something i am working on irl. one thing that is dumb about this is that in jarkesy they opined about the ALJ removal issue but did not rely on it to vacate the judgment. they said they didn't know what the remedy should be if that was the only issue. which is also weird because if the ruling is that the judgment is vacated because it should have been filed in federal district court there is no issue with the ALJ! it shouldn't have even been part of the opinion. i don't expect the supreme court is going to care about that.

― towards fungal computer (harbl), Friday, May 20, 2022 8:56 AM (three hours ago) bookmarkflaglink

This confused me -- was it remanded *to the ALJ* for proceedings consistent with the finding that it shouldn't have been before the ALJ? I didn't understand the remand in the opinion.

the judgment is entered by the SEC so it goes back to them, as far as i understand. not to the ALJ, they basically manage the litigation and fact-finding and report to the SEC with a recommendation.

Good read:

While Clarence Thomas badmouths the press and the libs, more dirt keeps coming out about his ethics

Good morning. So Ginny Thomas was paid for many years to lobby against the ACA while Clarence Thomas on several occasions voted to overturn the ACA or weaken it substantially. AND, Thomas failed to report her income from that lobbying for years. That’s Clarence Thomas.

— Eric Segall (@espinsegall) May 22, 2022

there are going to be some big consequences for clarence thomas after this bombshell

the corruption is so brazen it's unbelievable, and they know they are above the law and the only possible institution that can hold them to accountability is crumbling itself