Headquarters of the U.S. Securities and Exchange Commission in Washington, D.C. Photo: Diego M. Radzinschi/ALM
It has long been apparent to us that there is a deep skepticism on the Supreme Court about the “administrative state.” Lambasted by Donald Trump as the “Deep State,” it is, more broadly, the “alphabet agencies” which were at the heart of Franklin Roosevelt’s New Deal agenda. The United States of America was founded by a coalition which fought a monarch whose power was waning as the House of Commons ascended. But to hear today’s critics, we are faced with monarchical power. As recently said in the Wall Street Journal about the case Jarkesy v. Securities and Exchange Commission #22-859, now pending before the Supreme Court, “The fundamental constitutional problem is that the SEC combines enforcement and judicial power, acting as prosecutor, judge and jury.”
The Supreme Court in Jarkesy has agreed to answer three questions—each of which could deeply undercut a host of administrative agencies. The United States has appealed from a decision of a divided panel of the United States Court of Appeals for the Fifth Circuit written by Jennifer Elrod, a 15-year veteran of that court who was named “Alumni of the Year” in 2018 by the Harvard Law School chapter of the Federalist Society. The opinion begins: “Congress has given the Securities and Exchange Commission substantial power to enforce the nation’s securities laws. It often acts as both prosecutor and judge, and its decisions have broad consequences for personal liberty and property.”
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