Jackson Highlights Dangers Should Supreme Court Again Curtail Agency Power

The dangers I discussed before Monday's two prong attack on the SEC and the FTC - were highlighted in the oral argument as Kate Riga discusses below.  The casual talk of "being hauled before" administrative agencies - ignoring the abuses that gave rise to government attention - was unchallenged by the conservative justices who showed no interest in the facts, and little in the consequences of the relief sought: to dismantle the Administrative Law Judge system and shove an incalculable number of cases onto United States District Judges who would gain unprecedented power to shape the law, and the government's ability to manage the economy. 

- GWC

Justice Jackson Highlights Dangers Should Supreme Court Again Curtail Agency Power

By Kate Riga

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November 7, 2022 2:51 p.m.

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The Supreme Court heard two cases Monday that give it an opportunity to limit agency power, a theme for the right-wing bench throughout recent terms. 

One is a challenge to the Securities and Exchange Commission (SEC) and the other to the Federal Trade Commission (FTC). Both center on arguments about how the agencies deal with violations, with the challengers pushing for an easier route to bring those cases before federal judges rather than the agencies’ in-house adjudication system.

There are some good-faith concerns about the in-house system: that it lets an administration act as “judge, jury and executioner,” or that the agencies have a home-court advantage in front of their own judges. 

There are also highly ideological arguments against it, an extension of the right-wing legal world’s crusade against powerful agencies. These conservatives oppose robust regulation, and often lodge constitutional challenges to weaken it. The tagline for the right-wing legal group that brought the SEC challenge is “Protecting Americans From the Administrative State.”

And then there are good-faith arguments against sending more of these cases to federal courts rather than keeping them in the purview of the agencies themselves. They include a judiciary suddenly awash with cases agencies previously dealt with, forcing federal judges to weigh in on matters while lacking the technical expertise of agency judges. It also raises the possibility that a person or business under regulatory scrutiny could land an anti-agency, anti-regulation federal judge, encouraging defendants to venue shop and creating an effective loophole through which to escape regulators.

Justice Ketanji Brown Jackson clearly had some of those arguments in mind Monday. 

“The thing that is bugging me about your argument is that we could look at the statute that’s here and discern that Congress intended to allow the agency to do its work and then have judicial review,” she said to one of the agency challenger’s lawyers. “At a minimum, the fact that the statute requires the court of appeals to wait, in general, before it gets involved — you have to have a person who’s been aggrieved by a final order from the commission before the court of appeals gets involved.” 

She added that she’s “worried” that a section of U.S. code could be used “to undermine congressional intent about the finality of agency action before the courts come in.” 

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