I believe Mario Batali did that quite recently in his alleged creepy touching trial.
Back to your explanation, this seems like a court functioning the way it was meant to. I think everyone will agree there was a massive Executive overreach in the 20th century, with congress abdicating much of its counterbalancing power (making difficult/unpopular policy decisions that are future-looking is not the recipe for re-election).
Bowing to precedence regardless of the quality of the decision seems like bad law facilitating more bad law.
The government does not have a right to a jury trial, because the government doesn't have rights. (In the federal system, for example, government consent is required for a bench trial in the Federal Rules of Criminal Procedure, but because that is not a right, and the defendants right to a speedy and public trial, there is at least one case where a federal court, when jury trials were suspended because of the pandemic, conducted a bench trial under a defense jury trial waiver despite the government refusing consent and preferring jury trial.)
But the principle invoked in this case, non-delegation doctrine, is far reaching. The non-delegation doctrine is a theory, some might say a legal fiction, that says that Congress can’t delegate its power to make the laws, but can make a broad law and allow agencies can fill in details so long as Congress gives the agencies “an intelligible principle” for doing so.
This is not without basis—there is no obvious line to be drawn between Congress’s power to make laws, and the executive branch’s power to enforce them in a discretionary manner. There is nothing wrong with Congress making a broad law “fraud shall be illegal” and the SEC making rules for itself about how to enforce that. But clearly at some point executive regulation looks more like law making and less like an agency imposing guidelines for the exercise of its own discretion.
Historically the Supreme Court has been unwilling to police that line, but that could change. One thing I think you might see is greater scrutiny of agencies applying existing authority to enter new areas of regulation. The theory might be, for example, that it’s fine for the EPA to cut sulfur particulate targets, which clearly falls under the scope of the Clean Air Act, but that the agency needs new Congressional authority to do something like impose limitations on CO2 emissions, which involves a different problem than the Clean Air Act was intended to solve. There is already precedent in this direction, under something called the Major Questions Doctrine: https://crsreports.congress.gov/product/pdf/IF/IF12077
Even where it's currently clear that administrative agencies don't have authority to deny a given permit application, they often have the ability to delay it indefinitely, or demand superfluous reqs[0] be met before approval. (Since current caselaw requires a 'final administrative decision' before being able to appeal to an Article III court, an indefinite delay is essentially a loophole for agencies to wrongly "deny" a permit while avoiding judicial review.)
Agencies will want to avoid court cases setting precedent that might broadly affect internal administrative regs/policy beyond the case at hand, and therfore the future overall autonomy of the agency. (Notwithstanding the current lawfare abuse of agencies entering consent decrees premised on feigned controversy.)
Court rulings would also better bind agencies to previous decisions, and better prevent permit revocation for arbitrary or political purposes (see Keystone XL revocation).
[0] For example, permits for natural gas pipeline compressor stations are currently only being approved if they are powered by electric motors, instead of (the traditional method) of NG turbines ("self powered" by siphoning a portion of the fuel being pumped). Even if you presume CO2 emissions fall under current EPA clean air act authority (they don't), the requirement doesn't actually reduce net CO2 emissions with respect to the project's environmental impact, since it just means a small amount of NG is consumed at a different point source, instead of further downstream.
Not only does this not reduce the overall NG consumption (and therefore not affect net CO2 produced), but it adds embedded and operating inefficiencies, as well unnecessary points of failure. (see: Texas deep freeze blackouts where some NG "backup" infrastructure failed because it required grid power to operate. Especially true in remote areas lacking any electrical infra like offshore/aggregating compressor stations.)
Here, the EPA uses permitting power to implement supralegal political policy beyond the statutory requirements, by stretching policy logic far beyond what would survive the most basic judicial review. Under the status quo, judicial review is almost always an additional cost to the applicant beyond the expensive initial permit application.
Judicial relief (or the threat thereof) that potentially pre-empts some of those bureaucratic costs would be a real game changer for both private projects and public infrastructure, in terms of both roi and time/effort to implement.
If being tried by a jury is so necessary for justice, how is it that ~95% of people currently imprisoned in this country have never faced a jury trial?
The answer is obvious - actually having jury trials for everyone would grind the country to a halt, so for the majority of us, this sort of right only exists in theory.
But you'll never hear the 5th circuit saying a word on that subject.
In a just world, this new development should mirror how jury trials work for the rest of us - anyone demanding a jury trial to avoid regulatory censure should be subjected to such horrific penalties if they lose, that nobody in their right mind would ever choose that option. Sadly, we do not live in a just world.
>In a just world, this new development should mirror how jury trials work for the rest of us - anyone demanding a jury trial to avoid regulatory censure should be subjected to such horrific penalties if they lose, that nobody in their right mind would ever choose that option. Sadly, we do not live in a just world.
I'm assuming this is sarcasm because you're describing a Lovecraftian bureaucratic horror-show.
[1] I'm sidestepping the reason for why this might be so common, which likely has to do with the lack of public defenders and high caseloads though I don't have actual data that supports this.
It's a well-known number. [1]
> but regardless of how true it is, I suspect the reason so many are imprisoned without having a jury trial is that they waived that right[1] and took a plea deal.
And why do they waive that right?
Because if they don't waive that right, they are subjected to the Lovecraftian bureaucratic horror-show[2] you pooh-poohed just a few lines down.
Take the plea deal, and serve two, or go to trial, flip a coin, and serve ten.
> I'm sidestepping the reason for why this might be so common.
You can't side-step it - you have to look at the system as a whole. It's true that most people can't ever afford to hire a competent lawyer, and it's true that going to trial with a public defender is lunacy, and it's also true that being found guilty at a trial is far, far worse than taking the guilty plea. This is by design - it's a check and balance that ensures most people don't exercise that right.
A right that for most of us only exists in theory is no right at all. It is a privilege, available for the privileged - in the sense that a feudal lord was privileged. It's justice, but only for those who can afford it. It's a complete perversion of equality under the law.
So, of course I'm mad as hell that this court ruled that the group of people most-favored by having the option for a jury trial receiving it, while we go on, and shrug our shoulders at the inaccessibility of it for the rest of us.
[1] https://innocenceproject.org/guilty-pleas-on-the-rise-crimin....
[2] Going to trial with a public defender certainly qualifies as one.
https://www.justice.gc.ca/eng/csj-sjc/just/12.html
The reason why this is often advantageous is that the judge knows well the legal provisions and is more likely to rule in line with previous cases. The judge is also not a prosecutor (and in Canada, not elected by the public) so the judge doesn't have an incentive to be "tough on crime". AFAIK in general, you would only request a jury if you believe your case is in some way fundamentally different from similar cases and you don't want the "default" penalty if found guilty.
If > 90% of people are pressured into waiving the right, does the system actually provide this right?
Also, personally it drives me crazy when American legal discussions fall back to English legal traditions. Didn’t we fight a big revolution so we wouldn’t have to live with all that baggage? I’m not a lawyer so I know I’m out of my depth. But as a U.S. citizen living under a written Constitution, I have a hard time understanding why my country should make itself beholden to England’s legal history specifically.
Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired Power Plants based on service area, customers, and operating capacity on Wednesday and so forth.
The dismantling of the administrative state leaves us in a precarious position where we either end up completely unregulated (which I know some people would welcome, but as someone that enjoys not getting asbestos in my breakfast cereal, I think we need some regulations). Do we just end up with massive packages of regulations written up by ALEC and other private groups that then get handed to legislators and passed?
Sure an unelected bureaucrat sounds bad, but if the alternative of paying some guy $40k a year to think about these issues and draw up regulation is to let the person being regulated write their own rules, I'll take the former. I suspect the latter regulations will end up being whatever makes the most profit for the person being regulated, and if we all have to breathe lead because it makes some company's profits go up then so be it.
The government isn't always on the side of the common man, but neither are multinational corporations, and the multinational corporations are pretty up front about being in it for themselves.
That's part of the problem. 435 is far too low for a representative democracy. The U.S. has the highest representation ratio among OECD nations[1]. The size of Congress has been held at this arbitrary number despite the size of the country growing threefold. The value of being in Congress, or being able to influence a member of Congress is enormous. As is the competition to get into one of those 435 seats. Is it any wonder big money controls so much of politics now?
[1] https://www.pewresearch.org/fact-tank/2018/05/31/u-s-populat...
Imagine a world in which the Congressional Apportionment Amendment had been ratified in 1789. The House would have more than 6,000 members today. https://en.wikipedia.org/wiki/Congressional_Apportionment_Am...
[a]: Twelve states already signed on, just need a few dozen more
[b]: Case in point, the 27th Amendment[0] was submitted to the states for ratification at the same time (1789), but never had enough states sign on until 1991.
[0]: https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_th...
But in any given year, at least 200 of them will be elected specifically for the purpose of ensuring that government does nothing at all. So the remaining ones go to extraordinary effort to achieve even the basics, and often fail.
The question in this case is whether juries are also needed in order to survive Constitutional scrutiny, and this opinion concludes it does. So we don't necessarily have to throw out the baby with the bathwater: administrative agencies can coexist with the need for protections for criminal and civil defendants who are subject to the rules they promulgate.
They certainly could be well-versed enough to supervise the work of picking the best proposals in each of these domains. Each Congress-critter has enough paid staff to basically be their own public-policy think tank.
The SEC still gets to make the rules, they just don't also get to impose penalties on their own, without a jury trial.
From a practical perspective, many of these rules are only implemented and enforceable because of the "in-house" self-adjudication framework, that operates on the presumption that it's own regs are lawfully valid, and don't have to repeatedly convince outside judges and juries to choose to enforce the sometimes absurd or overreaching rules that only make logical and legal sense to those sheltered within the bureaucratic bubble.
And they only avoid being struck from the books entirely because self-adjudication basically negates any chance of 1st-round judicial review/ scrutiny and other legal protections that are baked into Article III courts.
Which has resulted in agencies being far more aggressive with their rule making than they'd otherwise be.
Additionally, taking into account the game-theory of the framework, the upfront costs and risk vs reward put applicants at a major disadvantage, even before you take into account the effectively endless resources at the disposal of the government. Add the fact that beurocratic delay can tactically benefit an "adversarial" govt agent at little to no net cost or consequence to them personally or to the agency. while simultaneously increasing the applicant's direct application/ compliance/ litigation costs, plus costs and other risks incurred by delay of the project, costs due to govt-demanded project changes or added permitting conditions, and the uncertainty of whether the project is ultimately approved/ permitted at all.
It's not an "end of the world" ruling as some are claiming, but it will have substantial higher order effects beyond ability to impose penalties.
Not really. What's commonly called English Common Law is itself an Anglo-Saxon bastardization of Norman Law. Even American Law borrows directly from Norman Law in the formers now dwindling but still surviving usage of Latin.
>They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.
While I agree with the premise that is how law should be, that's generally not how it was nor is it so simple to accomplish. A quote to one should remember is that "[A]ny Anglo-American lawyer must cope with a sneaking feeling that there is no such thing as first principles, just one damned case after another."
One of the downsides of the fixed written Constitution being hard to change is that you end up with these strange rules where the law today is dependent upon intuition about how a current problem would have been viewed through the lens of the common law at the time of the founding, and we mostly only have English legal treatises to fall back on, so it feels like being beholden to English legal history.
"Interesting" to say the least. Trying to govern a modern nation of 370 million people based on a literal 18th-century interpretation of a Constitution designed to govern a handful of former colonies is going to be a (very predictable) disaster, which is why the Court hasn't done it before.
But you’re wrong to argue the “court hasn’t done it”, because the court has been doing it all along. It’s called precedence.
The structural bones of the constitution itself remain strong, and are made more resilient by removing ad-hoc modifications currently straining that framework beyond its intended yielding limits.
- "This country became a world power with 76 million residents in 1900 before it got any of the Progressive era administrative state."
- "The country became a world superpower with 180 million residents in 1960 before it got the modern administrative state"
You wrote "world superpower", but the US didn't become a world superpower until WW2, well after ~1915, which is when the population reached 100M.
While the US started becoming a world power in 1898, with the Spanish-American War, and fully became a world power by WWI, that was after the Interstate Commerce Commission was formed in 1887, as the first administrative agency.
Now, you wrote "modern", which of course is in the eye of the beholder and likely is meant to exclude the ICC. Did the modern era start in 1906, with the FDA and the Federal Meat Inspection Act? Or Wilson, with the Federal Reserve (1913) and the FTC (1914)? Or the New Deal (1930s), like the SEC (1934)?
You'll note that all of those were before the US became a modern world superpower, and several before the US population reached 100M.
On the other hand, this beholder - https://ballotpedia.org/Administrative_state - points out that the modern administrative state didn't start until 1964 with Johnson's Great Society programs.
Here's another equally true statement:
- "The country became a world superpower with 203 million residents in 1970 before 18 year olds had the right to vote."
While true, that wouldn't justify removing the franchise from modern 18 year old.
Your observation, even when corrected, seems to be similarly weak as an argument to remove administrative agencies.
The Fed wasn't even the first US central bank. The Founding Fathers (e.g., Morris, Hamilton) created them very early on:
* https://en.wikipedia.org/wiki/History_of_central_banking_in_...
For example, the Federal Reserve can assess fines without going to court, like: "Federal Reserve Fines Deutsche Bank $41 Million for Deficient Anti-Money Laundering Program" - https://www.wsj.com/articles/federal-reserve-fines-deutsche-...
Did the First Bank of the US have regulatory abilities and the ability to access civil fines?
https://en.wikipedia.org/wiki/First_Bank_of_the_United_State... says it "did not set monetary policy, regulate private banks, hold their excess reserves, or act as a lender of last resort", which would suggest the answer is "no".
If correct, that would mean it's not part of the "administrative state".
On the other hand, in the civil law systems when new countries are formed, as soon as you get the core laws passed (which takes some years of transition) you do generally make a clean start where only the new code of laws matter and everything else is discarded - you explicitly choose which parts of earlier code get included in the new laws, and that's it, old laws get pulled out only if there's a relevant dispute about some events which happened back when those old laws were in force.
One must wonder if its host nation-state had survived for longer, what iteration would be out in the wild.
"Eye for an eye" comes from the Book of Exodus, and it was meant not as a prescription, but as a limitation:
> The intent behind the principle was to restrict compensation to the value of the loss.[1]
So it was also a prescription - but yes, as you say, it is also a limitation for retaliation, assigning an equivalent punishment to limit escalation of vengeance.
No, actually, the revolution mainly had the opposite intent: anger that England was denying the English colonists the rights they were entitled to as Englishmen and would have enjoyed in England.
[0] https://en.wikipedia.org/wiki/Seventh_Amendment_to_the_Unite...
What about executive orders?
That seems like extreme overreach of the executive branch.
It's it being used in an emergency either.
The presidents are issuing hundreds of them during their terms.
There is a major lack of oversight on Executive Orders.
BUT for the most part they are an accurate use from what I can tell. Usually they are merely aspirational goals for agencies to implement, much more similar to a CEO's quarterly goals for subdivisions. The President is a dual office role of being head of the executive branch, and being head of the military.
I don't really see that much straight up unilateral ordering of specific actions, and those would be the only constitutionally questionable ones.
That would seem like it falls under the legislative branch.
For example, the CDC has the authority to mandate certain things in the name of public health, because Congress created the HHS (who oversees the CDC) with the express purpose of doing so. So an Executive Order directed at the CDC can, in a sense, give the President that power.
Additional context on that threat of court packing is that the Supreme Court was already invalidating and gutting the New Deal! Its such an important story to me because my grade school history books all upheld the New Deal as this monumental and amazing thing.
From what I can tell, 75% of it (or 75% of the programs it created) was declared unconstitutional, and everything else just hasn't been challenged yet!
And of the things that were challenged and declared constitutional, it was under the threat of court packing! Now, 3-5 generations later, the Supreme Court just can't imagine how society functions by ruling accurately to begin with! I'm pretty interested in any court unwinding this incongruency.
It may be that the New Deal does contain many unconstitutional provisions, but also that that same legislature was in fact a net benefit for Americans.
The authority of each government branch is explicitly enumerated. I’d rather them behave according to the contract they are beholden to than decide they have whatever authority they wish. That’s no longer a constitutional republic.
I’m not saying that a constitutional republic is the end all, be all. I’m just saying there is a process for getting things done and it is supposed to checked by the constitution and the other federal branches. That can be changed by amendment or revolution, but should not be changed by the whim of politicians.
It just so happens that all my causes and grudges are from creatures of the New Deal, and I'm not in a position to bring them before the courts yet. Imagine my excitement when I realized how flimsy that era's legislative flurry really was.
au contraire, in some opinions
Politically speaking, it's a terribly flawed document, because it can't change it without a civil war or functionally one party rule, and its written in imprecise language that opens it up to more judicial interpretation than is necessary or constructive.
Ideally we'd see less of "judges rule without interpreting it strictly," which would help garner popular support for future amendments.
I'd also reiterate that social factors have changed, we're currently in the longest break between amendments being passed since reconstruction. None have been passed in my lifetime, and the same group that says we should interpret the constitution extremely strictly is also the one that says that it's perfect as is and we should respect it and the founders great insights. That's not a recipe for changing it.
> Ideally we'd see less of "judges rule without interpreting it strictly,"
That's, just, like, your opinion, man. By which I mean that originalism isn't the only school of thought in regards to the constitution. By the time you've succeeded in convincing people that it is okay to change the constitution, you'll have also convinced them that interpreting it less strictly. Saying it's a living document but not a living constitution is an impossibly hard needle to thread.
And that's doubly true when "should the document be changed" itself becomes a political question, which it has. Something like 20-30% of the US will vote for people on a platform of "I will oppose any constitutional amendment". That's enough to block ratification!
18 times (Articles 3-12 of the proposed Bill of Rights were ratified simultaneously and became Amendments 1-10; article 2 took 201 more years, and Article 1, though it was once one state away from ratification, has still not been ratified and is 27 states short.)
It's not rule by the minority. It's that the majority needs to get wider agreement on their changes if they are to be implemented. The minority cannot force anything to happen. They can only prevent sweeping changes from passing with the slimmest of margins.
For every liberal complaining about the filibuster or Senate debate rules, would you have been fine with total Republican control of all levels of Federal government from 2016-2018? They had a wider majority in both the House and the Senate than the Democrats do right now.
Slowing the pace of massive change is a good thing. It gives time for ideas to be fleshed out. It gives time for ideas to be experimented with at a smaller scale. It gives time for people to see the results or consequences of actions.
Yes the systematic unequal representation in (in descending order of inherent distortion, though abuse of state-level control of apportionment in the latter case means it's not always descending order of actual distortion) the Senate, Electoral College, and House all favor essentially the same geopgraphy and thus the same political faction so long as ideology isn't geographically homogeneous. This favors stable minority rule.
Seriously, this is not a sarcastic or troll post. I have always been confused about this.
FDR implemented a bunch of large social programs which naturally grow the government, spend more money, and therefore require more tax dollars to fund.
Social programs that redistribute money have long been considered a form of forced charity which many conservatives think is immoral.
Disclaimer: Not taking a side here. In 2022 I don't think we have a "good" political party in the US let alone a perfect one.
I wonder what % of the entire judiciary budget could be paid via the budget SEC division of enforcement.
From that standpoint, this assertion of jurisdiction could entail a better staffed judiciary.
Ordering a party to disgorge gains from fraud is of course not a “public right” but a quintessential legal proceeding that should be brought in a real court.
There’s a lot of things administrative agencies do that probably aren’t Constitutional and violate the separation of powers. Executive branch quasi-courts adjudicating claims like fraud is the tip of the iceberg. The Supreme Court upheld these statutes in the mid-20th century under the shadow of FDR’s threat of court packing. The Reagan-era Supreme Court was not inclined to roll those decisions back, but I think you will see the current Supreme Court being much more active on that front.
[1] Law courts are the courts we usually think of, with juries. They are the only courts that can award damages. Courts of equity are like the Delaware chancery court—they can award certain equitable relief such as recission of a contract. Today most states and the federal system invest legal and equitable powers in the same courts, but the right to a jury trial arose in England when those courts were distinct.