The US Supreme Court just issued its decision in SEC v. Jarkesy. As many predicted, a 6-3 majority found that the SEC’s statutory structure violates the 7th Amendment, which protects the right to a jury trial in an Article III court when a federal agency seeks civil penalties. This decision is important for our readers because it previews how the Supreme Court will consider numerous arguments currently being made regarding the constitutionality of the National Labor Relations Board.
Several of these decisions make the same 7th Amendment arguments made in Jarkesy. Those cases will hinge on whether the courts believe that the penalties sought by the Board against employers are like the civil penalties in Jarkesy. But in her dissent, Justice Sotomayor describes her concerns about the bigger picture:
Against this backdrop, our coequal branches will be surprised to learn that…the constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress.
Justice Sotomayor previews the problems that this decision creates for agencies like the Department of Labor and the National Labor Relations Board:
For example, it is unclear how OSHA, or the National Labor Relations Act at issue in Jones & Laughlin, would fit the majority’s view of the public-rights doctrine or why the exercise of interstate-commerce power to enact those statutes would be any different from the exercise of that same power to enact the federal-securities laws at issue here.
It’s a good question. Numerous cases are winding their way toward the Supreme Court now (most notably SpaceX v. NLRB), and we will hopefully get an answer soon.
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