Last year, the far-right United States Court of Appeals for the Fifth Circuit handed down a breathtaking decision that would have hobbled the Securities and Exchange Commission (SEC), the New Deal-era agency tasked with protecting investors from fraud, and destroyed much of the federal government’s ability to function in the process. Parts of the Fifth Circuit’s decision also could have potentially bolstered former President Donald Trump’s plans to replace much of the federal civil service with MAGA loyalists if reelected.
The good news, if you care about functioning government and liberal democracy, is that the Supreme Court, which heard arguments in this case on Wednesday morning, appears unlikely to go anywhere near as far as the Fifth Circuit. Wednesday’s arguments in this case, known as SEC v. Jarkesy, focused entirely on a relatively narrow issue: whether defendants in enforcement proceedings brought by the SEC are entitled to a jury trial.
One of the Fifth Circuit’s most aggressive arguments, that a largely defunct legal doctrine known as “nondelegation” potentially strips federal agencies of much of their authority to make discretionary decisions, hardly came up. And another Fifth Circuit argument, the one which could have given a potential second Trump administration broad new authority to fill the government with his loyalists, was barely mentioned at all.
Which is not to say that the Court’s ultimate decision in Jarkesy will end well for the SEC. The Court appears likely to hand down a 6-3 decision, along party lines, that will weaken the SEC’s power to protect investors. And the Court’s decision is likely to diminish the government’s ability to try complex cases involving highly technical areas of the law — such as securities fraud cases — in specialized forums presided over by experts in those areas of the law.
But even the Court’s GOP-appointed majority appeared uninterested in the kind of sweeping,…
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