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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]

#181

Post by joshuamorton »

bwaldrep wrote: post #171
joshuamorton wrote: post #142

Earlier quoted context omitted.

That only works if people don't unreasonably deify the system. You have to admit the constitution is deeply flawed in order to be willing to modify it, and, well, if popular opinion is that it is deeply flawed, you won't amend it, you'll just have judges rule without interpreting it strictly. Politically speaking, it's a terribly flawed document, because it can't change it without a civil war or functionally one part…

It's a bit hyperbolic to say a civil war or one party rule is required. We've successfully amended it 27 times, 6 of those after 1950. Ideally we'd see less of "judges rule without interpreting it strictly," which would help garner popular support for future amendments.

I mean, of those 6, one (the 22nd) was passed as a response to the functionally one-party rule by FDR and new-deal dems in the 30s and 40s. Two (the 24th and 26th) were voting rights amendments that were functionally extensions of the 15th amendment, you know...one of the post-civil war amendments. And one (the 25th) was passed after the president was assassinated. One (the 27th) is a very popular idea with bipartisan support, and it still took 200 years to ratify.

I'd also reiterate that social factors have changed, we're currently in the longest break between amendments being passed since reconstruction. None have been passed in my lifetime, and the same group that says we should interpret the constitution extremely strictly is also the one that says that it's perfect as is and we should respect it and the founders great insights. That's not a recipe for changing it.

> Ideally we'd see less of "judges rule without interpreting it strictly,"

That's, just, like, your opinion, man. By which I mean that originalism isn't the only school of thought in regards to the constitution. By the time you've succeeded in convincing people that it is okay to change the constitution, you'll have also convinced them that interpreting it less strictly. Saying it's a living document but not a living constitution is an impossibly hard needle to thread.

And that's doubly true when "should the document be changed" itself becomes a political question, which it has. Something like 20-30% of the US will vote for people on a platform of "I will oppose any constitutional amendment". That's enough to block ratification!

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

#182

Post by dragonwriter »

bwaldrep wrote: post #171
joshuamorton wrote: post #142

Earlier quoted context omitted.

That only works if people don't unreasonably deify the system. You have to admit the constitution is deeply flawed in order to be willing to modify it, and, well, if popular opinion is that it is deeply flawed, you won't amend it, you'll just have judges rule without interpreting it strictly. Politically speaking, it's a terribly flawed document, because it can't change it without a civil war or functionally one part…

It's a bit hyperbolic to say a civil war or one party rule is required. We've successfully amended it 27 times, 6 of those after 1950. Ideally we'd see less of "judges rule without interpreting it strictly," which would help garner popular support for future amendments.

> We've successfully amended it 27 times

18 times (Articles 3-12 of the proposed Bill of Rights were ratified simultaneously and became Amendments 1-10; article 2 took 201 more years, and Article 1, though it was once one state away from ratification, has still not been ratified and is 27 states short.)

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

#183

Post by dragonwriter »

koolba wrote: post #173
jyounker wrote: post #147

Earlier quoted context omitted.

Rule by the minority. You think that's fair?

> Rule by the minority. You think that's fair? It's not rule by the minority. It's that the majority needs to get wider agreement on their changes if they are to be implemented. The minority cannot force anything to happen. They can only prevent sweeping changes from passing with the slimmest of margins. For every liberal complaining about the filibuster or Senate debate rules, would you have been fine with total Rep…

> It's not rule by the minority

Yes the systematic unequal representation in (in descending order of inherent distortion, though abuse of state-level control of apportionment in the latter case means it's not always descending order of actual distortion) the Senate, Electoral College, and House all favor essentially the same geopgraphy and thus the same political faction so long as ideology isn't geographically homogeneous. This favors stable minority rule.

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

#184

Post by beerandt »

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…

The most practical effect from my perspective (engineer that has to deal with regulatory permitting and compliance) is that it will hopefully act as an incentive for agencies to better cooperate with applicants, to do so in a timely manner, and to prevent permitting demands from going beyond what's explicitly required by statute.

Even where it's currently clear that administrative agencies don't have authority to deny a given permit application, they often have the ability to delay it indefinitely, or demand superfluous reqs[0] be met before approval. (Since current caselaw requires a 'final administrative decision' before being able to appeal to an Article III court, an indefinite delay is essentially a loophole for agencies to wrongly "deny" a permit while avoiding judicial review.)

Agencies will want to avoid court cases setting precedent that might broadly affect internal administrative regs/policy beyond the case at hand, and therfore the future overall autonomy of the agency. (Notwithstanding the current lawfare abuse of agencies entering consent decrees premised on feigned controversy.)

Court rulings would also better bind agencies to previous decisions, and better prevent permit revocation for arbitrary or political purposes (see Keystone XL revocation).

[0] For example, permits for natural gas pipeline compressor stations are currently only being approved if they are powered by electric motors, instead of (the traditional method) of NG turbines ("self powered" by siphoning a portion of the fuel being pumped). Even if you presume CO2 emissions fall under current EPA clean air act authority (they don't), the requirement doesn't actually reduce net CO2 emissions with respect to the project's environmental impact, since it just means a small amount of NG is consumed at a different point source, instead of further downstream.

Not only does this not reduce the overall NG consumption (and therefore not affect net CO2 produced), but it adds embedded and operating inefficiencies, as well unnecessary points of failure. (see: Texas deep freeze blackouts where some NG "backup" infrastructure failed because it required grid power to operate. Especially true in remote areas lacking any electrical infra like offshore/aggregating compressor stations.)

Here, the EPA uses permitting power to implement supralegal political policy beyond the statutory requirements, by stretching policy logic far beyond what would survive the most basic judicial review. Under the status quo, judicial review is almost always an additional cost to the applicant beyond the expensive initial permit application.

Judicial relief (or the threat thereof) that potentially pre-empts some of those bureaucratic costs would be a real game changer for both private projects and public infrastructure, in terms of both roi and time/effort to implement.

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

#185

Post by beerandt »

darawk wrote: post #146
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…

They can delegate to agencies. The ruling isn't preventing them from doing that, it's just preventing the adjudication of penalties from being carried out by those agencies. The SEC still gets to make the rules, they just don't also get to impose penalties on their own, without a jury trial.

In theory, yes.

From a practical perspective, many of these rules are only implemented and enforceable because of the "in-house" self-adjudication framework, that operates on the presumption that it's own regs are lawfully valid, and don't have to repeatedly convince outside judges and juries to choose to enforce the sometimes absurd or overreaching rules that only make logical and legal sense to those sheltered within the bureaucratic bubble.

And they only avoid being struck from the books entirely because self-adjudication basically negates any chance of 1st-round judicial review/ scrutiny and other legal protections that are baked into Article III courts.

Which has resulted in agencies being far more aggressive with their rule making than they'd otherwise be.

Additionally, taking into account the game-theory of the framework, the upfront costs and risk vs reward put applicants at a major disadvantage, even before you take into account the effectively endless resources at the disposal of the government. Add the fact that beurocratic delay can tactically benefit an "adversarial" govt agent at little to no net cost or consequence to them personally or to the agency. while simultaneously increasing the applicant's direct application/ compliance/ litigation costs, plus costs and other risks incurred by delay of the project, costs due to govt-demanded project changes or added permitting conditions, and the uncertainty of whether the project is ultimately approved/ permitted at all.

It's not an "end of the world" ruling as some are claiming, but it will have substantial higher order effects beyond ability to impose penalties.

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

#186

Post by [deleted] »

jonahbenton wrote: post #30
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…

Very helpful. Seems like it could be a huge deal. Am curious what the impact from a caseload perspective would be? How many actions are handled on an administrative basis vs how much capacity the relevant court systems have? And impact on duration- administrative actions typically handled in x time, courts take y time. Would love pointers if anyone has them.

[deleted]

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

#187

Post by [deleted] »

jonahbenton wrote: post #30
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…

Very helpful. Seems like it could be a huge deal. Am curious what the impact from a caseload perspective would be? How many actions are handled on an administrative basis vs how much capacity the relevant court systems have? And impact on duration- administrative actions typically handled in x time, courts take y time. Would love pointers if anyone has them.

[deleted]

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

#188

Post by vkou »

xyzzyz wrote: post #175
sofixa wrote: post #155

Earlier quoted context omitted.

> If the elected representative cannot get enough votes to pass a law, it most likely means that the law is not that important, or that there is no agreement on what it should be. I'm not even in the US and i know that's quite simply untrue. Almost every single issue gets split among party lines, regardless of its merits. Abortions, vaccinations, climate change combatting are supported by the majority of the populati…

> Abortions, vaccinations, climate change combatting are supported by the majority of the population, yet no law on either can really be passed due to arcane rules and the refusal of one party to do anything that might benefit the other This is an extremely simplistic, if not outright naive take. Majority might be for “combatting climate change”, sure, but when it comes to actual methods to do that, you’ll find that…

Congress delegated this rule-making power to the executive. Congress is legally empowered to do this.

If you are unhappy about this, why won't you have congress undelegate this power? It is fully within its powers to do just that. You seem to believe that congress doing its job is the solution to this problem - why not solve it through congress doing its job?

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

#189

Post by rootusrootus »

nonameiguess wrote: post #32
rootusrootus wrote: post #10

Earlier quoted context omitted.

Sure, but this is about constraints by the Constitution, and military members do not give up their Constitutional protections when they enlist.

Yes, they do. You absolutely give up freedom of speech and any rights of unreasonable search and seizure when you enlist. You don't give up every right, though. You still get the option of a jury trial whenever you want one. A commander's ability to levy administrative punishment relies on you opting in. You always have the option to seek court martial instead, the issue being they can levy much more severe punishmen…

Military members still have freedom of speech rights. More tightly regulated in some instances than civilians, but the right isn't taken away. Even as a civilian there are restrictions on your freedom of speech.

Similar for the fourth amendment. There are exceptions for civilians, and a different set of exceptions for military members, based on government need.

The Constitution applies to all US citizens, military or not.

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

#190

Post by colejohnson66 »

adrr wrote: post #138
yeahwhatever10 wrote: post #98

Earlier quoted context omitted.

Yea it says how to on the ticket.

Not in my state. https://www.courts.ca.gov/34711.htm?rdeLocaleAttr=en

From that link:

> Under Penal Code sections 17(d) and 19.8, if certain offenses are charged as an infraction instead of as a misdemeanor, you can ask that the infraction charge be tried with a jury as a misdemeanor.

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