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<v Speaker 1>Welcome to sco Discast, a project of the Federalist Society

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<v Speaker 1>for Law and Public Policy Studies. Our contributors joined us

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<v Speaker 1>from around the country to bring you expert commentary on

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<v Speaker 1>US Supreme Court cases as they are argued and the

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<v Speaker 1>decisions are issued. The Federalist Society takes no position on

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<v Speaker 1>particular legal or public policy issues. All expressions are those

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<v Speaker 1>of the speaker. Hello, and welcome to scot Discust. I'm

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<v Speaker 1>your host, Kyle hammerniz On, behalf of the Faculty division

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<v Speaker 1>of the Federalist Society. We are here today to discuss sec.

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<v Speaker 1>Versus Jarkaesi, in which the Supreme Court issued a six

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<v Speaker 1>' to three decision on June twenty seventh, twenty twenty four.

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<v Speaker 1>It is my honor to introduce our guests today, Devin Watkins.

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<v Speaker 1>Devon is an attorney at the Competitive Enterprise Institute. Devin

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<v Speaker 1>previously worked at the Cato Institute as a legal associate

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<v Speaker 1>and intern at the Institute for Justice. And with that,

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<v Speaker 1>I like to turn things over to Devin to get

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<v Speaker 1>us started.

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<v Speaker 2>I'm happy to be here, so I'm here to talk

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<v Speaker 2>about Jarkasey, which at least in my opinion, is one

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<v Speaker 2>of the most important Supreme Court decisions in a very

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<v Speaker 2>long time. There are probably two critically important Supreme Court

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<v Speaker 2>decisions this term on the size, scope and power of

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<v Speaker 2>the administrative state. Of course, the overturning of Chevron has

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<v Speaker 2>enormous implications for the rule making process that all federal

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<v Speaker 2>agencies go through. But in many ways Tarkasias is important

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<v Speaker 2>for the adjudication process, is as the overturning of Chevron

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<v Speaker 2>was for the rule making process. This is the other

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<v Speaker 2>half of agency's formal powers. So in this case, let

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<v Speaker 2>me go into a little bit of the kind of

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<v Speaker 2>factual background. At least according to the ALJS, is found

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<v Speaker 2>by the SEC. Darkasey had claimed to brokers and investors

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<v Speaker 2>that some prominent accounting firm would audit the hedge fund,

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<v Speaker 2>that some prominent investment bank would serve as the fund

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<v Speaker 2>primary broker, and that half the funds would be invested

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<v Speaker 2>in life insurance policies. The LJ found that no audit

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<v Speaker 2>had taken place, no prime vocage account was open, and

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<v Speaker 2>only twenty percent was invested, and so he The ALJ

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<v Speaker 2>and the SEC found that Jarkisey had committed securities fraud.

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<v Speaker 2>Now I don't know if these facts are true or false,

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<v Speaker 2>and there was no jury involved in this, despite the

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<v Speaker 2>fact that Darkasey had asked for one. The Fifth Circuit

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<v Speaker 2>reviewed the findings of the SEC and LJ and they

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<v Speaker 2>found that there were three problems with the process that

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<v Speaker 2>the SEC went through. Specifically, that the SEC had the

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<v Speaker 2>discretion to bring the case either within federal court or

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<v Speaker 2>with through his administrative process, but that there was no

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<v Speaker 2>intelligible principle telling the SEC which one it should go for,

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<v Speaker 2>and so it violated the non delegation doctrine for the

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<v Speaker 2>SEC to make that choice without being told by Congress

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<v Speaker 2>how it should be making that choice. The second problem

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<v Speaker 2>was that there was a four cause restriction on the

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<v Speaker 2>administrative law judges removal that violated Article two in the

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<v Speaker 2>Separation of Powers. And lastly, that Jarghesi was entitled to

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<v Speaker 2>a jury trial on the Seventh Amendment. Now, the Supreme

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<v Speaker 2>Court only decided that third question specifically on the Seventh

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<v Speaker 2>Amendment and left the other two to go back to

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<v Speaker 2>the Fifth Circuit in the future cases. So those two

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<v Speaker 2>are still live issues in future cases. But because the

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<v Speaker 2>Supreme Court was able to resolve it entirely on the

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<v Speaker 2>Seventh Amendment rouds that is then entire basis for the

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<v Speaker 2>Supreme Court's opinion, So I'm going to be focusing on

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<v Speaker 2>that aspect of it here. So the Seventh Amendment says,

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<v Speaker 2>in suits a common law, where the value and controversy

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<v Speaker 2>shall exceed twenty dollars, the right of trial by jury

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<v Speaker 2>shall be preserved. So the key question then in this

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<v Speaker 2>case is what is a suit at common law? According

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<v Speaker 2>to the sec any administrative action brought in its administrative

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<v Speaker 2>forum is not a suited common law because a suited

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<v Speaker 2>common law meant an in federal court. If you don't

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<v Speaker 2>go to court, it's not a suit, and therefore it

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<v Speaker 2>doesn't matter. Under the Seventh Amendment. We don't need a

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<v Speaker 2>jury as long as we don't bringing it outside of

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<v Speaker 2>an Article three court. Now, there's some problems with this.

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<v Speaker 2>If that were actually the case, then Congress could effectively

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<v Speaker 2>eliminate the Seventh Amendment right and just assign everything to

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<v Speaker 2>administrative forums or outside courts and just eliminate the right

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<v Speaker 2>to a by jury in all actions. And that seems

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<v Speaker 2>rather absurd given the history of the Seventh Amendment. The

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<v Speaker 2>Seventh Amendment was created in response to certain abuses by

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<v Speaker 2>the English government that occurred shortly before the American Revolution.

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<v Speaker 2>There was a lot of restrictions on trading, specifically that

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<v Speaker 2>certain goods and ships had to go through Everything had

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<v Speaker 2>to go through England, had to be bought and sold

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<v Speaker 2>certain goods through England before it could come to or

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<v Speaker 2>be sold by the American colonies. This caused prices to

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<v Speaker 2>go up a lot more than if they had sold

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<v Speaker 2>directly to foreign governments or foreign individuals, and there was

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<v Speaker 2>a lot of Americans were upset by that, and because

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<v Speaker 2>of that, there was a lot of Americans that committed

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<v Speaker 2>smuggling and kind of avoided those restrictions. The British government

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<v Speaker 2>then brought smuggling charges against American colonists, and the American

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<v Speaker 2>colonists who sat on juries were rather hesitant to convict

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<v Speaker 2>their fellow American colonists of these crimes. They were very

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<v Speaker 2>skeptical and kind of really pushed back against a lot

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<v Speaker 2>of the extravagance and a lot of the prosecutions. And

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<v Speaker 2>there was a lot of complaints by the British governors

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<v Speaker 2>that were selected by the English authorities about this. So

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<v Speaker 2>what the English Parliament decided to do is transfer all

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<v Speaker 2>of these from common law courts to admiralty courts that

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<v Speaker 2>had no jury trials and therefore bypassed the right to

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<v Speaker 2>a jury and just have individuals that were selected by

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<v Speaker 2>the British government deciding if these people were guilty in

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<v Speaker 2>issuing fines. That was the history that then led to

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<v Speaker 2>the Seventh Amendment that protected these kind of actions and

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<v Speaker 2>ensured that a jury trial would be allowed. Now it

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<v Speaker 2>does say ensues a common law to the founding, there

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<v Speaker 2>was kind of three different areas of law where different

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<v Speaker 2>cases could be brought. You could bring cases in the

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<v Speaker 2>common law courts, the courts of equality, equity, and the

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<v Speaker 2>courts of animalty. The animalty courts are for things that

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<v Speaker 2>occur on the high seas. There's a natural reason to

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<v Speaker 2>not have a jury in these cases because the actions

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<v Speaker 2>occur to the high seas. There is no local jury

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<v Speaker 2>in the middle of the ocean that you can then

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<v Speaker 2>call forth to being to decide issues of fact. Issues

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<v Speaker 2>of equity was another exception that is distinguished from court

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<v Speaker 2>from common law courts. In these cases, you're not trying

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<v Speaker 2>to punish anyone. You're not taking property from them that

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<v Speaker 2>they own because they committed some wrongdoing. Instead, you're saying

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<v Speaker 2>what needs to happen in the future to follow the law,

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<v Speaker 2>and you're trying to set things right because you're not

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<v Speaker 2>actually punishing anyone, and there's no decision as to some

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<v Speaker 2>bad act that occurred in the past. The ability for

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<v Speaker 2>the government to kind of abuse that process even without

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<v Speaker 2>a jury is a lot less because any decisions made

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<v Speaker 2>would not generally apply just to the individuals involved, but

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<v Speaker 2>would then be applicable to anyone in society under equal facts.

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<v Speaker 2>And so in those cases ad Multy and Equity, the

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<v Speaker 2>founders not believe that a jury was required, but they

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<v Speaker 2>did want to preserve it as suits of common law.

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<v Speaker 2>Now suits at common law only meant cases brought in court.

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<v Speaker 2>It can be easily evaded. Instead, at least my opinion

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<v Speaker 2>is that suits of common law meant suits that at

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<v Speaker 2>that time would have been brought in common law, meaning

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<v Speaker 2>that there are suits for damages or to remedy past

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<v Speaker 2>harms by taking property that they that people had and

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<v Speaker 2>giving it to those that were harmed, or to the government.

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<v Speaker 2>Any of these kind of cases or suits at common law,

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<v Speaker 2>and those kinds of cases we need to have a

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<v Speaker 2>jury trial, and that's mostly what the majority held in

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<v Speaker 2>this case. One of the key problems is that there

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<v Speaker 2>are some cases what's called public rights cases, where there

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<v Speaker 2>was no jury involved in the process. Now, a lot

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<v Speaker 2>of these are cases where even I would not characterize

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<v Speaker 2>them as suit as a common law, although they might

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<v Speaker 2>involve money. An example might be a federal benefit program.

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<v Speaker 2>The government is handing out money, and it's not taking

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<v Speaker 2>money from people that is properly their The adjudication of

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<v Speaker 2>that is not a suit at common law. There's no

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<v Speaker 2>punishment involved in making such a decision, and sol though

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<v Speaker 2>it involves money, it can be done outside of the

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<v Speaker 2>jury process. There's a variety of other areas that the

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<v Speaker 2>court identifies, such as certain immigration law, some tax law.

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<v Speaker 2>For instance, some tax collector is taking money in for

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<v Speaker 2>the government, and although they take the money into the government,

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<v Speaker 2>they then fail to pass it along to the treasury.

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<v Speaker 2>The government can go and say, look, you use that

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<v Speaker 2>money to buy the house. We're now going to sell

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<v Speaker 2>that house and collect the money that is properly are

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<v Speaker 2>as the government. We're not just punishing you because of this,

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<v Speaker 2>We're just trying to take the money that the government

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<v Speaker 2>already owns. This is our money. And so in those

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<v Speaker 2>kind of what's called public rights cases. No jury needed

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<v Speaker 2>to be involved, and those all started perfectly acceptable. You know,

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<v Speaker 2>some of these public benefits, some tax cases, stuff like that.

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<v Speaker 2>There were several of these kinds of cases. The problem

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<v Speaker 2>is that in the nineteen seventy seven case of Atlas Roofing,

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<v Speaker 2>the Supreme Court expanded that public rights doctrine to include

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<v Speaker 2>not just those kind of traditional areas where most people

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<v Speaker 2>would say that's not a lawsuit at common law, but

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<v Speaker 2>tried to then claim that any time the government is

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<v Speaker 2>exercising sovereign power related to a federal statute that gives

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<v Speaker 2>the government that power, that it automatically then becomes a

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<v Speaker 2>public right, and therefore the government can bypass the jury

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<v Speaker 2>trial right. I actually filed a brief in darkase and

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<v Speaker 2>asked the Supreme Court to overrule Atlas Roofing. The majority

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<v Speaker 2>declined to do so. Instead, what they decided to do

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<v Speaker 2>is distinguish Atlass Roofing and say that the Osha Act

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<v Speaker 2>did not involve the kind of traditional common law actions

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<v Speaker 2>like involved in this case. In this case, which involved

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<v Speaker 2>securities fraud, the court found it was very similar to

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<v Speaker 2>common law fraud that would have been brought in a

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<v Speaker 2>common law court at the founding and therefore was clearly

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<v Speaker 2>a suit at common law at the time of the founding,

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<v Speaker 2>and then distinguished the Osha Act and said, that's an

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<v Speaker 2>entirely separate scheme. It was unrelated to a lot of

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<v Speaker 2>things that occurred at the founding, and therefore we don't

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<v Speaker 2>need to deal with that, this roofing and this constitutionality

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<v Speaker 2>right now. Instead, it relied upon two cases Toll the

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<v Speaker 2>United States and Grand Faresea bian Norberg. This was in

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<v Speaker 2>nineteen eighty seven. In nineteen eighty nine, case Told dealt

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<v Speaker 2>with the Clean Water Act and a bind that was issued.

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<v Speaker 2>The court there said a bine under the Cleaning Water

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<v Speaker 2>Act was very similar to an action in debt at

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<v Speaker 2>common law and therefore would fall within the Seventh Amendment.

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<v Speaker 2>And in Grand Faresea, the court said that a fraudulent

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<v Speaker 2>and conveyance actions are legal in nature sure and require

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<v Speaker 2>a jury trial. So it was those cases that the

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<v Speaker 2>majority primarily relied upon to say that a securities fraud

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<v Speaker 2>case is similar enough to assuit a common law that

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<v Speaker 2>it needs to have a jury trial to be able

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<v Speaker 2>to be functional, and this and often will push the

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<v Speaker 2>case out of administrative forum because administrative forums don't have

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<v Speaker 2>jury trials. The ability to bring these cases in administrative

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<v Speaker 2>and forum is going to be limited. Instead, a lot

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<v Speaker 2>of these cases are going to then be brought in

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<v Speaker 2>Article three courts where they can have jury trials. And

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<v Speaker 2>these cases really should be an Article three court, so

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<v Speaker 2>you have a real jury that is going sorry, a

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<v Speaker 2>real judge that can evaluate these under Article three as

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<v Speaker 2>well as a jury. I think both of those are true.

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<v Speaker 2>Although this case focused specifically on the right to a

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<v Speaker 2>jury trial, now, the dissent primarily focuses on the fact

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<v Speaker 2>that although the Court distinguished at List Roofing, according to

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<v Speaker 2>this assent, it shouldn't have that Atlas Roofine really controlled

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<v Speaker 2>this case. That this case. While the majority said that

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<v Speaker 2>the remedy at issue issuing a monetary fine is what

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<v Speaker 2>causes this to require a jury trial under the Seventh Amendment,

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<v Speaker 2>the sense said, look, Atlas Roufine had a fine just

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<v Speaker 2>like this one. And it said that the security and

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<v Speaker 2>the Descent claims that the securities fraud statue is the

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<v Speaker 2>creation of a new statute, not the same as the

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<v Speaker 2>common law fraud because it doesn't require any kind of

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<v Speaker 2>injury to private parties. It is brought by the government

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<v Speaker 2>in its sovereign capacity and directly by the government. It's

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<v Speaker 2>not a litigation between two private parties. Now I have

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<v Speaker 2>some you know, I can see that as sense point.

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<v Speaker 2>In some ways, I agree that this is not that

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<v Speaker 2>much different between Atlas Roofine. This is why we asked

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<v Speaker 2>that Alice Roufing be overruled. We think that Lias Rufe

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<v Speaker 2>is wrong to decide that the Supreme Court was kind

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<v Speaker 2>of careful not to say whether Atlas Ruvine was rightly decided.

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<v Speaker 2>In fact, they suggested, and that Alice Ruvie may already

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<v Speaker 2>have been overturned, but they don't actually decide that here,

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<v Speaker 2>which is kind of strange. Usually the Court is clear

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<v Speaker 2>what cases are good law and what cases are it's

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<v Speaker 2>not good law when it's citing those cases. But the

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<v Speaker 2>Descent also takes issue with the fact that the majority

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<v Speaker 2>is kind of making that kind of distinction where it says,

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<v Speaker 2>we're going to distinguish Atlas Rufine, but we're not going

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<v Speaker 2>to say if Atless Rufine is good law. So I

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<v Speaker 2>can understand why the Ascent is making those claims. I

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<v Speaker 2>would just say that even if the Ascent is right,

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<v Speaker 2>I think the Court should have overruled at this Rufie.

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<v Speaker 1>Thank you for listening to this episode of SCO Discussed.

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<v Speaker 1>Go Discussed is a project of the Federalist Society, not

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<v Speaker 1>for profit educational organization of conservative and libertarian law students,

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<v Speaker 1>law professors, and lawyers. Founded upon the principles that the

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<v Speaker 1>state exists to preserve freedom, that the separation of governmental

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<v Speaker 1>power is essential to our constitution, and that it is

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<v Speaker 1>emphatically the province and duty of the judiciary to say

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<v Speaker 1>what the law is, not what it should be. Don't

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<v Speaker 1>archive of past podcasts, as well as audio and video

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<v Speaker 1>FEDSOC dot org slash multimedia. That's fed sooc dot org

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<v Speaker 2>This has been a FEDSOC audio production.