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5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

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Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#161

Post by throw0101a »

IG_Semmelweiss wrote: post #72
PeterisP wrote: post #62

Earlier quoted context omitted.

And the two major alternative starting points used in practice are Roman law or Sharia law, both of which are likely even less acceptable to someone who doesn't want the baggage of English common law. 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 la…

The code of Hammurabi (eye for an eye) seemed to be popular back in the day. One must wonder if its host nation-state had survived for longer, what iteration would be out in the wild.

> The code of Hammurabi (eye for an eye) seemed to be popular back in the day.

"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]

* https://en.wikipedia.org/wiki/Eye_for_an_eye

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#162

Post by xmcqdpt2 »

xyzzyz wrote: post #117
vkou wrote: post #111

Earlier quoted context omitted.

> The gist of the decision is that the SEC’s imposition of civil penalties and disgorgement violated defendants’ seventh amendment right to a jury trial 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 majo…

I don’t like it either that the right to jury trial is overwhelmingly bargained away, but having the right and bargaining it away is still preferable to not have any right in the first place.

Isn't the issue that in the US you only have a binary choice between jury or plea deal? I'm Canadian and here most trials are bench trials, that is in front of a judge only

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.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#163

Post by rayiner »

kurupt213 wrote: post #158
rayiner wrote: post #17

The gist of the decision is that the SEC’s imposition of civil penalties and disgorgement violated defendants’ seventh amendment right to a jury trial. Under the seventh amendment, you have a right to a jury trial for any claim that would have been an action at law in the courts of England at the time of the founding, prior to the merger of law and equity.[1] There is an additional principle that so called “public ri…

Can defendants in criminal or civil court request a verdict from a judge or panel of judges instead of a jury? 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 counterbala…

Yes, both civil and criminal cases can try the case to a judge, called a bench trial. Both sides have to agree to that however, since technically both sides have a right to a jury trial.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#164

Post by greyface- »

whoopdedo wrote: post #103
ihumanable wrote: post #82

Earlier quoted context omitted.

I don't see how this doesn't end with the government basically failing. The modern world is dizzyingly complex, if Congress can't delegate to dedicated agencies how does this all work. 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 P…

> Are there 435 people in this nation well versed enough to write detailed regulations 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 Con…

> 435 is far too low for a representative democracy.

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...

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#165

Post by twoodfin »

rayiner wrote: post #102
rkagerer wrote: post #45

Earlier quoted context omitted.

Great summary, this is very fascinating. What are some of the likely impacts & effects this ruling will have over the long-term?

Some effects will be relatively small. For example the SEC has authority to haul you into court, in a proceeding which reflects how the system is supposed to work, with the executive branch prosecuting the law and the judicial branch deciding it. 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 Con…

If you want to hear how this legal conflict directly plays out in a real case, the SCOTUS oral arguments for the recently heard West Virgina v. EPA are available via the Oyez podcast:

https://overcast.fm/+FUsKSZuBc

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#166

Post by rayiner »

chevill wrote: post #141
civilized wrote: post #36

Earlier quoted context omitted.

Finally, a reason for conservative FDR-hate that I can understand. Seriously, this is not a sarcastic or troll post. I have always been confused about this.

I'm not sure why its confusing. Conservatives have historically proclaimed themselves to be (in their words even if the actions don't always match) in favor of small government, reduced government spending, and the minimal taxation required to keep a small government functioning. FDR implemented a bunch of large social programs which naturally grow the government, spend more money, and therefore require more tax doll…

“Conservatism” is a tent with a lot of different groups, most of whom dislike FDR for somewhat different reasons. There’s small government conservatives like you mention. There are legal conservatives who are animated more by being sticklers for the rules than opposition to government social programs per se. There’s also lots of folks, maybe the biggest group, who like the New Deal but resent FDR judicial appointees for their tendency to ignore clear Constitutional limits on the federal government one hand, while on the other hand reading in lots of restrictions on state moral and social regulation that aren’t so apparent in the Constitutional text or history.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#167

Post by eesmith »

throw0101a wrote: post #159
eesmith wrote: post #154

Earlier quoted context omitted.

I think you've got things a bit off. I think more correct ones are: - "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 afte…

> Or Wilson, with the Federal Reserve (1913) […] 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_...

As I understand it, the complaint about the "administrative state" is that administrative agencies have the ability to regulate and assess fines or other judgments that should properly be part of Congress and the court system.

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".

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#168

Post by incomingpain »

I have been waiting for this for months! Complete collapse of the US stock markets to follow.

The important factor here is that the SEC isn't doing their job. If 2009 is of any indication, that was just the tip of the iceberg. They are meaninglessly issuing tiny fines that big funds are simply paying. Eventually the fines would amount to enough money that it doesn't hurt their bottom line but does engage the lawyers.

Now it's the wild west. Feel free to commit whatever securities crimes you wish. SEC is basically not going to punish you.

Sucks to be the gamestop folks. They basically just lost their infinite money.

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#169

Post by dragonwriter »

rayiner wrote: post #163
kurupt213 wrote: post #158

Earlier quoted context omitted.

Can defendants in criminal or civil court request a verdict from a judge or panel of judges instead of a jury? 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 counterbala…

Yes, both civil and criminal cases can try the case to a judge, called a bench trial. Both sides have to agree to that however, since technically both sides have a right to a jury trial.

> Yes, both civil and criminal cases can try the case to a judge, called a bench trial. Both sides have to agree to that however, since technically both sides have a right to a jury trial.

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.)

Re: 5th Circuit Court Finds SEC Enforcement Unconstitutional [pdf]

#170

Post by vannevar »

refurb wrote: post #150
vannevar wrote: post #86

Earlier quoted context omitted.

>It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state... "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.

Appeal to modernity fallacy (I just invented it). 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.

I was referring specifically to striking down long-standing precedents that endorsed mechanisms like SEC enforcement, and interpreting a right of privacy. What we're seeing is a dramatically stripped-down view of the Constitution. If it were being done as part of a broad social consensus that included a plan to revamp the Constitution to meet modern needs, it would be difficult but beneficial in the long run. But what's happening is more akin to tearing down your own house while you're living in it, with no plan for how to rebuild it.
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