SEC v. Jarkesy

And I'll just give one example of this.

So I remember when the SEC versus Jarkesy case came out like a term or two ago, and it was about whether the SEC could do in-house adjudication of claims for civil penalties instead of going to court.

And I remember reading through the majority opinion, and I called a friend of mine and I said, "Okay, so quick question.

I'm a progressive, so I know I'm supposed to hate this, but why? Don't progressives like due process? Don't we like access to courts? Do we really like immigrants being subject to in-house adjudication where the Department of Justice and DHS are the judge, jury, and prosecutor? Absolutely not, and so why would we like it for the SEC?" And so I feel like that kind of thinking can paint you as a pariah, and I don't like that, and I know it happens on the conservative side, too, and I just wish we could be a little bit more open-minded and listen a little bit more.

Mm-hmm.

There was a very similar case to this called SEC v. Jarkesy just recently.

We covered that case where the, the conservatives found that it's unconstitutional for, you know, a non-Article III court to take on these sorts of cases.

They're trying to strip away the ability of administrative agencies to enforce the law.

The agency enjoyed a massive home court advantage.

And in the landmark case, SEC v. Jarkesy, the Supreme Court finally agreed with those critics and struck a devastating blow to the administrative enforcement machine.

George Jarkesy was a hedge fund manager.

The SEC accused him of securities fraud and sought massive civil financial penalties against him.

They have administrative law judges, ALJs, who hold hearings and issue massive fines against private citizens.

This implicates Article III judicial power and the Seventh Amendment right to a jury trial, prominently addressed in recent cases like SEC v. Jarkesy.

The critical structural distinction here is between public rights and private rights.

What is a public right?

All right.

Uh, John asks, "Has anyone tried to use some version of the Corner Post Loper Bright Jarkesy trifecta to argue that immigration judges and courts are unconstitutional and cannot be used to deport immigrants? If so, how has this argument been received?" Eric, my understanding is that, um, Congress kinda has plenary authority over the border, and so it's kind of allowed to set up whatever system it wants for this sort of adjudication.

Um, I don't remember how far back in my memory that r- the recesses of that lie, but it's not really a regulatory question, right? It's kind of a Congress gets to decide who gets to come here, right?

Uh, yeah, that's right.

Uh, Corner Post is, involves the statute of lim- uh, when the statute of limitations expire on challenging agency actions.

I, I don't think it's really, uh, at play here.

Uh, Jarkesy, I'm not sure if I'm pronouncing that correctly, uh, it held that, um, the SEC needed to-- The SEC was violating the Seventh Amendment when it, uh, de- denied, um, a jury trial to folks who it, uh, alleged were engaging in, in securities fraud.

Uh, and Jarkesy, however, distinguishes immigration, um, by, by saying that immigration falls into a, a class of issues known as, uh, public rights and, and citing a opinion from 1909, uh, that, uh, holds or at least notes, uh, opines that, uh, Congress can, uh, prohibit immigration and punish people for invi- who violated those, uh, prohibitions, uh, without, uh, having, uh, giving them a jury trial.