The SEC on Trial: Reining in Unchecked Power

By: Thomas J. Powell

As the Supreme Court deliberates a pivotal case challenging the enforcement authority of the Securities and Exchange Commission, the U.S. approaches a defining moment regarding the scope of power vested in administrative agencies. SEC v. Jarkesy cuts to the heart of constitutional questions on executive power, individual rights, and regulatory overreach that have intensified in recent years. It holds profound implications for the future of financial regulation and beyond.

The case confronts the SEC’s use of administrative law judges—unelected agency staff who oversee internal enforcement trials, acting as investigators, prosecutors, and judges combined into one troubling package. This centralized power enabled the SEC to pursue unsubstantiated fraud allegations against hedge fund manager George Jarkesy, dragging him through a grueling six-year, in-house adjudication devoid of impartiality.

On trial alongside the SEC’s practices is the terrifying reality of the unchecked regulatory excess they represent—an affront to fundamental constitutional liberties enshrined in the Seventh Amendment. This amendment guarantees citizens’ rights to impartial jury trials for civil cases that exceed twenty dollars. However, the SEC contends such protections do not apply in administrative proceedings, empowering them to unilaterally condemn individuals and impose industry bars without independent oversight. This end-run around constitutional checks and balances should terrify anyone concerned over a fair justice system and only serves to underscore the urgent need for reform reasserting constitutional checks against tyranny—as envisioned by Hamilton and Madison in The Federalist Papers.

During deliberations on November 29, 2023, Justices Thomas and Gorsuch challenged the SEC’s reliance on the “public rights” doctrine against the Seventh Amendment’s jury requirement, likening the agency’s proceedings to traditional common-law fraud necessitating a jury. In contrast, Justices Kagan, Sotomayor, and Jackson invoked the Court’s Atlas Roofing precedent to support the SEC’s position, arguing that creating and enforcing new rights through administrative channels is constitutionally valid.

A Supreme Court decision favoring Mr. Jarkesy would trigger sweeping changes across federal agencies, overturning precedents stretching over a century. This would necessitate redirecting enforcement actions to federal courts and likely overhauling administrative law as we know it. Such reforms may prove tumultuous in the short-term but offer tremendous long-run value by re-establishing constitutional equilibrium between executive power and judicial review.

Alternatively, the Court could rule narrowly, upholding current law while affirming Mr. Jarkesy’s rights were violated under existing statutes—thereby avoiding broader disruption. Regardless of the exact decision, this case cracks open the door to curtailing the administrative state’s swollen influence.

As debates intensify over what form potential restrictions on agencies may take, critics argue this would dangerously weaken regulatory capacity. Such concerns are misguided–reforms that enhance accountability rarely undermine effectiveness over the long haul.

The United States’ system endures because it channels tension between state power and individual liberty through dispersed checks across branches and levels of government. SEC v. Jarkesy epitomizes the need to rebalance this equation for the 21st century as administrative titans amass unprecedented reach into our lives.

Madison and Hamilton warned future generations in The Federalist Papers that consolidating power invites abuse and corrosion of liberty. While complex modern problems require regulatory expertise, enabling unrestrained administrative growth upends constitutional safeguards, jeopardizing freedom. Regardless of political affiliation, this should trouble all patriotic citizens.

As the Supreme Court weighs arguments in this landmark case, the soul of American democracy hangs in the balance. Will we tolerate the continued dilution of constitutional rights to fuel an ever-growing regulatory apparatus? Or will we take a stand to restore the Framers’ vision of balanced state power, checking tyranny while protecting freedom? The time for choosing is now.

Thomas Powell, a doctor of law and policy candidate at Northeastern University, draws on over thirty years of domestic and international business and finance experience to provide strategic insights to leaders. As a senior advisor at The Brehon Group, he promotes economic empowerment and democratic values worldwide.

The views and opinions expressed in the preceding article are those of the author and do not necessarily reflect the views of The DI Wire.

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