SEC v. Jarkesy (22-859)

argument 22-859

SEC v. Jarkesy

Supreme Court of the United States 2h 16m 8 speakers 8 chapters transcribed 6 days ago official recording ↗

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What historical arguments does the Court use to support agency enforcement of statutes?

John G. Roberts 0:00

We'll hear argument this morning in case twenty two eight fifty nine, the Securities and Exchange Commission versus Jorkousi. Mr Fletcher?

Andrew J. Fletcher 0:09

Thank you, Mr Chief Justice, and may it please the Court. Throughout our nation's history, Congress has authorized the agencies charged with enforcing federal statutes to conduct adjudications, find facts, and impose civil penalties and other consequences prescribed by law. More than a century ago, this court described the validity of those statutes as settled beyond any possible constitutional question, and since the enactment of the APA, those and other administrative adjudications have often been conducted by officers specially appointed for the purpose and removable only for cause. This court should reject all three of the Fifth Circuit's reasons for upsetting that longstanding and entrenched practice.

Andrew J. Fletcher 0:47

First, this Court's decision in Atlas Roofing considered many of the same arguments presented today and reaffirmed that Congress does not violate the Seventh Amendment when it authorizes an agency to impose civil penalties in administrative proceedings to enforce a federal statute. Respondents have not asked this Court to overrule Atlas or the long line of precedence on which it rested, and they also haven't identified any relevant distinction between that case and this one. Second, Congress does not violate the nondelegation doctrine when it gives an agency the choice of pursuing administrative or judicial proceedings. The decision whether and how to pursue enforcement action is a quintessentially executive power, and Congress doesn't violate the Constitution when it leaves that decision to executive discretion as it has traditionally done.

Andrew J. Fletcher 1:30

Finally, the APA's limited removal protection for ALJs is entirely consistent with this Court's Decision in Free Enterprise Fund. There, the Court confronted an unprecedented agency, a powerful law enforcement board, that was insulated from removal because by an unusually stringent provision and that was not subject to the SEC's control. Here in contrast, ALJs are purely adjudicative officers who are subject to the Commission's plenary control and review of their decisions, and the APA's modest four cause removal standard gives the Commission ample authority to remove those ALJs if they fail to accept supervision. I welcome the court's questions.

Clarence Thomas 2:07

But you do agree, Mr Fletcher, that it depends on the type of right involved.

Andrew J. Fletcher 2:12

We do. We take this Court's statement of the public rights doctrine from Atlas Roofing and other cases, and the argument we are making here is limited to the particular strand of the public rights doctrine that the Court has described in Atlas and other cases.

Clarence Thomas 2:24

And how would you define public rights?

Andrew J. Fletcher 2:26

So I I acknowledge, I think the Court has acknowledged most recently in oil states that the public rights concept is is contested. The Court has never fully plumbed its outer perimeters. I think what I'd say is the strand of the doctrine that's relevant here is the same one from Atlas, which is when the federal government, an agency, is enforcing a federal statute in its exercise of its sovereign powers, that's a matter involving public rights.

Clarence Thomas 2:49

Uh if I don't agree with you that we're talking about public rights here. uh that the private rights are involved. Uh would you uh then think that uh it is required that it be adjudicated before uh An Article III court?

Andrew J. Fletcher 3:07

So we haven't made an argument. There are some circumstances, cases like Shore and Thomas, where the Court has said in some circumstances it may be permissible to assign initial adjudication even involving private rights to non-Article III tribunals. We're not making an argument like that here. We're resting on the argument that this is a classic public rights case within this court's precedence and also we think properly viewed as a matter of first principles.

Elena Kagan 3:29

Mr Fletcher, could you go directly to Justice Thomas's question? He's already written on this issue and he thinks that a private right is any right that involves property, life, or liberty, basically.