Challenge to the use of Administrative Law Judges is at the Supreme Court

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Supreme Court casts doubt on agency enforcement actions without juries

The Supreme Court appeared ready Wednesday to disrupt the process that federal agencies use to police federal law violations, in a case that challenges enforcement actions at the Securities and Exchange Commission. Conservative justices expressed skepticism during oral arguments about the...
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I seem to remember the FAA uses ALJ’s when you get sideways with them; if the SCOTUS rules for the plaintiff here this could upend things.
 
I think it goes even farther than that. It’s potentially a challenge to all of the rules that Federal agencies make. So that would throw out ADs, STCs, TSOs, probably type certificates. If it’s not in the CFRs it’s not enforceable.
 
JScarry said:
I think it goes even farther than that. It’s potentially a challenge to all of the rules that Federal agencies make. So that would throw out ADs, STCs, TSOs, probably type certificates. If it’s not in the CFRs it’s not enforceable.
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ATF shaking in its boots, lol.
 
JScarry said:
I think it goes even farther than that. It’s potentially a challenge to all of the rules that Federal agencies make. So that would throw out ADs, STCs, TSOs, probably type certificates. If it’s not in the CFRs it’s not enforceable.
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You do realize CFR's are administrative, and are written to comply with US Code?
 
JScarry said:
I think it goes even farther than that. It’s potentially a challenge to all of the rules that Federal agencies make. So that would throw out ADs, STCs, TSOs, probably type certificates. If it’s not in the CFRs it’s not enforceable.
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"The rules that federal agencies make" = the CFRs.
 
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I got no love lost for the admin law kangaroo court the FAA relies on, but I think folks are extrapolating a bit much on the repercussions of this SCOTUS potential ruling.

ah yes, the good ol' 5th circuit. I knew this had their name written all over it. :rolleyes:
 
Reminds me of the "sovereign citizen" videos I've been seeing on YouTube lately. People give elaborate explanations for why they aren't bound by the laws of whatever country they happen to be in. Results in some really entertaining confrontations with traffic cops.

Hmm, I wonder how that would go over with the FAA? :rofl:
 
Palmpilot said:
Reminds me of the "sovereign citizen" videos I've been seeing on YouTube lately. People give elaborate explanations for why they aren't bound by the laws of whatever country they happen to be in. Results in some really entertaining confrontations with traffic cops.

Hmm, I wonder how that would go over with the FAA? :rofl:
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Is that trending again? It trended a bit about 10 years ago... Also, that's quite suspicious that it's showing up in your recommendations on YouTube. That probably says something about what content you've been consuming. ;)
 
hindsight2020 said:
....but I think folks are extrapolating a bit much on the repercussions of this SCOTUS potential ruling.
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Could be. SCOTUS often tries to keep rulings narrowly confined to the particular case, or at least subject.

But folks on the firearms forums are paying a lot of attention to this. BATFE has been making up new rules out of whole cloth that instantly turn people into felons. This case could potentially curtail some of that, but I'm not holding my breath.
 
Over decades, congress has ceded too much authority to the executive branch leading to an imperial presidency. Hence the flagrant abuse of the Executive Order to create law. I would love to see the Supreme Court find for the plaintive. It would throw the responsibility for creating regulatory law to Congress and put what is a legislative responsibility back to the legislative branch and pull it from the Executive branch.
 
Over the last couple years SCOTUS has issued multiple narrow rulings limiting the Chevron doctrine, the root of this evil. There is much hope (maybe too much, but we can hope) they overturn it entirely.

Fingers crossed.
 
jbarrass said:
Over the last couple years SCOTUS has issued multiple narrow rulings limiting the Chevron doctrine, the root of this evil. There is much hope (maybe too much, but we can hope) they overturn it entirely.

Fingers crossed.
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I thought they did overturn the Chevron doctrine in the West Virginia versus EPA case?
 
RyanShort1 said:
Is that trending again? It trended a bit about 10 years ago... Also, that's quite suspicious that it's showing up in your recommendations on YouTube. That probably says something about what content you've been consuming. ;)
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I do occasionally watch videos about law-enforcement encounters with wackos. Then it gets to be too much and I start marking specific channels as "Do not recommend." :)

Right now I'm trying to educate a sovereign citizen, in the comments section, about constitutional law. (Spoiler: It's not going well.)
 
JScarry said:
You are correct. It’s even in the name. I should have said the US Code.
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As Domenick mentioned, there's also the issue of executive orders. I don't know whether that's a factor in the current Supreme Court case.
 
Domenick said:
Over decades, congress has ceded too much authority to the executive branch leading to an imperial presidency. Hence the flagrant abuse of the Executive Order to create law. I would love to see the Supreme Court find for the plaintive. It would throw the responsibility for creating regulatory law to Congress and put what is a legislative responsibility back to the legislative branch and pull it from the Executive branch.
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Sure, but I don't think that's what this case is about.
 
Half Fast said:
But folks on the firearms forums are paying a lot of attention to this. BATFE has been making up new rules out of whole cloth that instantly turn people into felons. This case could potentially curtail some of that, but I'm not holding my breath.
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Does the ATF utilize Administrative Law Judges? They're part of the DoJ, correct?
According to this the DoJ only has three total and they're not even assigned to the ATF.
 
As I understand it the issue at hand in the current case is not an agency’s broad power to set regulations; it is whether a plaintiff can get a trial by jury rather than acceding to the “kangaroo court” aspects of an ALJ. Reading the transcript of the case today, the 6 conservative justices seem inclined to agree with the plaintiff, a fellow named Jarkey who had an ALJ award some 1M+ in fines and restitution for SEC violations. That’s why I thought the case might be of interest to this group, as I have read the FAA ALJ’s seem to make ad hoc rulings with no recourse possible.
 
Morgan3820 said:
I thought they did overturn the Chevron doctrine in the West Virginia versus EPA case?
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West Virginia is the most recent of a line of cases limiting the breadth of Chevron. The limitations have mostly been about the type of questions requiring deference and the analysis into the reasonableness of the interpretation. Thats was a gross simplification.
 
It would do my heart good if the law recognized the need for due process when the "privilege" that they are adjudicating has massive financial implications. It is all well and good to say that flying is a privilege that does not get the due process protections you get if your freedom is on the line, but when that "privilege" is the sole source of support for you and your family, more should be required that the whims of a bureaucrat, IMO.
 
Kristin said:
It would do my heart good if the law recognized the need for due process when the "privilege" that they are adjudicating has massive financial implications. It is all well and good to say that flying is a privilege that does not get the due process protections you get if your freedom is on the line, but when that "privilege" is the sole source of support for you and your family, more should be required that the whims of a bureaucrat, IMO.
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Hey! How ya been, Kristin?
 
Kristin said:
It would do my heart good if the law recognized the need for due process when the "privilege" that they are adjudicating has massive financial implications. It is all well and good to say that flying is a privilege that does not get the due process protections you get if your freedom is on the line, but when that "privilege" is the sole source of support for you and your family, more should be required that the whims of a bureaucrat, IMO.
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We should have the right to a jury trial in the face of any government action that involves loss or reduction of a privilege or activity or financial loss. At a minimum, the proceeding needs to be in front of a real judge instead of what is essentially an employee of the plaintiff.
 
ateamer said:
We should have the right to a jury trial in the face of any government action that involves loss or reduction of a privilege or activity or financial loss. At a minimum, the proceeding needs to be in front of a real judge instead of what is essentially an employee of the plaintiff.
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That is something that certainly makes sense on the surface.

The issue is that these types of administrative actions often involve very technical and specialized knowledge, and will take a long time to educate a judge and jury on the law and specifics of the matter at hand. The ALJs are often experts in their field, which is why they're appointed to oversee hearings at their given bureau.

The second issue is what's going to happen when these matters all get dumped into the federal judicial system? We all have the right to a speedy trial, right? The system is already overwhelmed, and if this case is found for the plaintiff, each enforcement action at a federal agency is now added to the docket of a court system that has far fewer judges than the number of ALJs that currently exist.

Could be quite chaotic next summer depending on what happens.
 
Baked Potato said:
That is something that certainly makes sense on the surface.

The issue is that these types of administrative actions often involve very technical and specialized knowledge, and will take a long time to educate a judge and jury on the law and specifics of the matter at hand. The ALJs are often experts in their field, which is why they're appointed to oversee hearings at their given bureau.

The second issue is what's going to happen when these matters all get dumped into the federal judicial system? We all have the right to a speedy trial, right? The system is already overwhelmed, and if this case is found for the plaintiff, each enforcement action at a federal agency is now added to the docket of a court system that has far fewer judges than the number of ALJs that currently exist.

Could be quite chaotic next summer depending on what happens.
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Move the ALJs out of the executive branch and into the judicial and utilize the same standards of evidence and discovery as the rest of the judicial system.

Part of the complaint in the SEC case is the agency’s use of investigative and evidentiary procedures that don’t follow civil/criminal standards. I seem to recall a lot of fruit from the poisoned tree is involved with this case.
 
TCABM said:
Move the ALJs out of the executive branch and into the judicial and utilize the same standards of evidence and discovery as the rest of the judicial system.

Part of the complaint in the SEC case is the agency’s use of investigative and evidentiary procedures that don’t follow civil/criminal standards. I seem to recall a lot of fruit from the poisoned tree is involved with this case.
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Sure, I understand re: evidentiary rules.

However - although the Federal judges are part of the judicial branch, aren't they nominated by the president? So, in essence, this case may actually give more power to the executive branch, if found for the plaintiff?

It seems to me that there are more rigorous standards, and a more thorough vetting process for ALJs than for federal judges, especially if the President and Senate are led by the same party at a given point in time. We all know how many fed judges that go through that process are selected because of their ideological leanings and not their acumen in any specific technical field.
 
Baked Potato said:
That is something that certainly makes sense on the surface.

The issue is that these types of administrative actions often involve very technical and specialized knowledge, and will take a long time to educate a judge and jury on the law and specifics of the matter at hand. The ALJs are often experts in their field, which is why they're appointed to oversee hearings at their given bureau.

The second issue is what's going to happen when these matters all get dumped into the federal judicial system? We all have the right to a speedy trial, right? The system is already overwhelmed, and if this case is found for the plaintiff, each enforcement action at a federal agency is now added to the docket of a court system that has far fewer judges than the number of ALJs that currently exist.

Could be quite chaotic next summer depending on what happens.
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I question the "expertise" that these judges have. Take for example Judge Woody who handle the northeast. He primary qualification is that he was an Air Force JAG officer. I doubt that he had much exposure to civil aviation in that capacity. At least he could probably spell "aileron", but other than that, I am not sure how helpful that background would be.
 
Baked Potato said:
Sure, I understand re: evidentiary rules.

However - although the Federal judges are part of the judicial branch, aren't they nominated by the president? So, in essence, this case may actually give more power to the executive branch, if found for the plaintiff?
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Having a tough time following that train of thought, because federal judges rule against federal agencies as the plaintiff routinely.
Baked Potato said:
…We all know how many fed judges that go through that process are selected because of their ideological leanings and not their acumen in any specific technical field.
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I’s argue you see a lot of that today in federal civil cases, which offer due process, whereas the ALJ process does not. With an ALJ today, the executive branch makes the regulation to implement a law, prosecutes the violations, and also gets to judge that prosecution.

WSJ looked at SEC’s track record using ALJs vs federal court cases over a five year period, finding the ALJ process resulted in a 90% win rate; in the courts, the SEC was successful only 69% of the time. And not for chump change penalties, either. In FY22, there were 6 billion with a b dollars in penalties assessed by the SEC’s enforcement division.
 
TCABM said:
WSJ looked at SEC’s track record using ALJs vs federal court cases over a five year period, finding the ALJ process resulted in a 90% win rate; in the courts, the SEC was successful only 69% of the time.
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Do you happen to have a link? (Not being antagonistic - I'm genuinely interested in reading it). Also I don't have a WSJ account if it's behind a paywall.
 
Baked Potato said:
Do you happen to have a link? (Not being antagonistic - I'm genuinely interested in reading it). Also I don't have a WSJ account if it's behind a paywall.
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Let me know if this link works; it shouldn't be paywalled. I'll PM you a pdf of the article if it doesn't.
 
TCABM said:
Let me know if this link works; it shouldn't be paywalled. I'll PM you a pdf of the article if it doesn't.
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It does not, though there is an option to create a free account. I may do that.
Thank you
 
TCABM said:
Here's the pdf.
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Thanks.
Do you believe that the number of cases that are found in the agency's favor is, by itself, indictive of bias or unfairness? I know that, in the agency I work for at least, the attorneys do not push to have a case heard unless they believe that the evidence overwhelmingly shows wrongdoing by the defendant and that they aren't going to embarrass themselves in the hearing.

What about the very case that this week's Supreme Court testimony is about - is there actual doubt that Mr. Jarkesy defrauded his investors and that he's not just looking to get off on a technicality? (Honest question, having not followed this case when it was being tried earlier)
 
Baked Potato said:
Thanks.
Do you believe that the number of cases that are found in the agency's favor is, by itself, indictive of bias or unfairness?
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Not directly. What rubs me raw is giving any agency unchecked power. In the instance of ALJs in general, it’s not the role I have a problem with, it’s the process, and primarily it’s the lack of due process across the spectrum. When you get to choose who gets to hear the cases, under what rules they’ll be heard, and which appeals processes are at play, things start to smell like a kangaroo court. If integrity to the process is a hallmark for perception, it seems agencies would want to be a transparent as possible in their enforcement processes.

As for the extant case, I’m only following it peripherally.
 
Baked Potato said:
The issue is that these types of administrative actions often involve very technical and specialized knowledge, and will take a long time to educate a judge and jury on the law and specifics of the matter at hand.
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Quite true.

However,.....

The USC guarantees a right to a trial by jury, not a trial by subject matter experts. I would contend that if the regulation at issue is so complex that a jury can't understand it, it's also too complex to be enforced against a non-expert and should be re-written.

Yes, it might take a long time to educate judge and jury, but we should not set aside constitutional rights merely for convenience or because a judge is too busy to learn and understand the matter.


Baked Potato said:
The second issue is what's going to happen when these matters all get dumped into the federal judicial system? We all have the right to a speedy trial, right? The system is already overwhelmed, and if this case is found for the plaintiff, each enforcement action at a federal agency is now added to the docket of a court system that has far fewer judges than the number of ALJs that currently exist.
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Again, this is all quite true. We must find a solution that satisfies the rights of the accused, or if we cannot protect individual rights during enforcement, then we must drop the enforcement.
 
TCABM said:
Not directly. What rubs me raw is giving any agency unchecked power. In the instance of ALJs in general, it’s not the role I have a problem with, it’s the process, and primarily it’s the lack of due process across the spectrum. When you get to choose who gets to hear the cases, under what rules they’ll be heard, and which appeals processes are at play, things start to smell like a kangaroo court. If integrity to the process is a hallmark for perception, it seems agencies would want to be a transparent as possible in their enforcement processes.

As for the extant case, I’m only following it peripherally.
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What bugs me is not only having an agency derive complex regulations from laws, but having it set enforcement penalties. Financial penalties should ONLY be set by elected representatives and that should not be a power that can be delegated to non-elected bureaucrats. Any gov't body that can enforce fines (in some cases quite draconian) should answer to the voters.
 
Half Fast said:
What bugs me is not only having an agency derive complex regulations from laws…
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Without getting into politics, that’s the system that’s been set. Congress passes laws that end up in the US Code; the executive branch has to implement them, so rules are promulgated in the Code of Federal Regulations. The alternative is to have Congress write the regulations into the law. That may have been beneficial for BasicMed, but generally that’s not what your or I would want for every law that’s passed.

Half Fast said:
…Any gov't body that can enforce fines (in some cases quite draconian) should answer to the voters.
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Or have due process in a neutral third party venue, the courts.
 
Domenick said:
Over decades, congress has ceded too much authority to the executive branch leading to an imperial presidency. Hence the flagrant abuse of the Executive Order to create law. I would love to see the Supreme Court find for the plaintive. It would throw the responsibility for creating regulatory law to Congress and put what is a legislative responsibility back to the legislative branch and pull it from the Executive branch.
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Executive orders are based on powers delegated to the executive branch by las passed by congress, or powers delegated to the president by article 2 of the constitution. They can’t just be made up out of thin air. Congress can’t even tie its own shoes and you want 535 people to write every single regulation for the federal government?
 
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