Even as a federal appeals court was ruling that the executive branch may not take the place of an independent judiciary, President Joe Biden was trying to rig the game the other way. He is playing a dangerous anti-democracy game that must be stopped.
On May 18, the 5th U.S. Circuit Court of Appeals ruled in the case of Jarkesy v. Securities and Exchange Commission . George Jarkesy was accused by the SEC of securities fraud, an SEC administrative law judge, not a real judge but a bureaucrat, found him guilty, and the SEC commissioners affirmed the decision. Jarkesy was never allowed to present his defense in an actual court of law.
The 5th Circuit ruled that this arrangement violated Jarkesy’s right to trial by jury, among other constitutional deficiencies in the system. And the 5th Circuit is right.
In a speech seven years ago this month, former SEC Chairman Christopher Cox cogently and comprehensively explained why the agency’s administrative law system is suspect . Again, this is a former chairman of the SEC who was saying the agency’s powers had grown too great.
“We’ve seen the development of administrative actions that take the place of trials,” Cox said. “These proceedings bear little resemblance to civil courts and their accustomed rules of civil procedure.”
Later in the speech, he added, “What is often at stake are a person’s entire reputation and livelihood, not to mention the potentially enormous sums that can be demanded of her or him by way of penalties. … We typically think of all the protections that our civil justice system affords litigants as [a] safeguard that will protect a person’s reputation, livelihood, and property if she or he is innocent. Such essentials of justice as the right to a trial by jury and the right to depose witnesses have previously been thought to be the bedrock of our conviction that parties sued by the government will ultimately be treated fairly. Those particular protections, of course, are denied to every litigant in an administrative proceeding.”
Cox’s explanation was splendid. Although the 5th Circuit ruling applies only to the SEC, and although the Supreme Court hasn’t weighed in yet, the circuit court judges’ reasoning should be applied to administrative law judges and proceedings throughout all agencies of the federal government unless they adequately provide litigants with appropriate safeguards and access to the independent federal judiciary.
Incredibly, the Biden administration is so hungry for power that it would encroach on the powers the Constitution reserves to the judiciary. He views separation of powers as a threat to his authority.
Take, for example, Biden’s dangerous attempt to obliterate constitutional restrictions on his immigration amnesty agenda. In late March, Biden issued an order to allow “asylum officers,” not immigration court judges, to decide quickly to allow illegal immigrants to avoid deportation . The new rule creates a one-way ratchet that destroys the protections American citizens should enjoy from an orderly and rational immigration process for newcomers — the process established by Congress. The rule, in contravention of the actual law, provides an expedited procedure whereby the asylum officer can allow an otherwise illegal immigrant to remain in the United States, bypassing immigration courts and the possibility of deportation. But if the asylum officer rules in favor of deportation, then the immigrant gets a second bite at the apple through a hearing before an immigration judge who might decide not to deport him after all.
In sum, the odds are rigged in favor of illegal immigrants being waived through to permanent residence in the U.S., notwithstanding laws to the contrary.
This example is a sort of mirror image of most administrative law problems, as it promotes undue leniency instead of harsh, extrajudicial punishment. Yet across the federal government — whether it is the SEC issuing condemnation without proper trial, the Department of Homeland Security effectively granting asylum without grounds, or the IRS finding taxpayers guilty until proven innocent — administrative hearings very frequently violate the due process of law. The Supreme Court should accept a case soon that allows it to rein in such abuses.
* Article from: The Washington Examiner
