5th Circuit rules against the Administrative state

[jmotivator]

An interesting ruling came out of the 5th Circuit today. The case was brought by a petitioner who had been charged by teh SEC with overvaluing their hedgefund portfolio and misrepresenting who serves on the board.

In the appeal to the SEC ruling, the 5th Circuit rendered the following decision:

https://www.ca5.uscourts.gov/opinions/pub/20/20-61007-CV0.pdf

This seems... important. Based on this ruling, the court has upended the SOP for the SEC, and pretty much every Federal Agency that renders fines against corporations and individuals through internal adjudication rather than through the courts. It would seem the sheer volume of cases and fines handed out by the SEC would make hearing every one in front of a jury would be... logistically problematic.

If nothing else, the ruling could abolish the SEC practice of internal adjudication in cases that would fall under Common Law and declares the practice of leaving essential legislative details to be written by unelected officials after the bills to be unconstitutional... which could threaten numerous major pieces of legislation over the last 30 years.

 

[Mycroft]

An interesting ruling came out of the 5th Circuit today. The case was brought by a petitioner who had been charged by teh SEC with overvaluing their hedgefund portfolio and misrepresenting who serves on the board.

In the appeal to the SEC ruling, the 5th Circuit rendered the following decision:

View attachment 67391610

https://www.ca5.uscourts.gov/opinions/pub/20/20-61007-CV0.pdf

This seems... important. Based on this ruling, the court has upended the SOP for the SEC, and pretty much every Federal Agency that renders fines against corporations and individuals through internal adjudication rather than through the courts. It would seem the sheer volume of cases and fines handed out by the SEC would make hearing every one in front of a jury would be... logistically problematic.

If nothing else, the ruling could abolish the SEC practice of internal adjudication in cases that would fall under Common Law and declares the practice of leaving essential legislative details to be written by unelected officials after the bills to be unconstitutional... which could threaten numerous major pieces of legislation over the last 30 years.

Good.

This will make Congress actually do their jobs, instead of leaving it up to nameless, faceless unelected bureaucrats.

 

[Loulit01]

Ah, the return of laissez-faire business practices. Last time we had them they were followed by the Great Depression. But that was Biden's fault.

 

[Lutherf]

Ah, the return of laissez-faire business practices. Last time we had them they were followed by the Great Depression. But that was Biden's fault.

While I approve of blaming Biden I have to stand up for him and acknowledge that in 1930 he'd only been in the Senate for 2 years and hadn't yet gained enough power to really screw things up.

 

[Schism]

While I approve of blaming Biden I have to stand up for him and acknowledge that in 1930 he'd only been in the Senate for 2 years and hadn't yet gained enough power to really screw things up.

 

[Schism]

An interesting ruling came out of the 5th Circuit today. The case was brought by a petitioner who had been charged by teh SEC with overvaluing their hedgefund portfolio and misrepresenting who serves on the board.

In the appeal to the SEC ruling, the 5th Circuit rendered the following decision:

View attachment 67391610

https://www.ca5.uscourts.gov/opinions/pub/20/20-61007-CV0.pdf

This seems... important. Based on this ruling, the court has upended the SOP for the SEC, and pretty much every Federal Agency that renders fines against corporations and individuals through internal adjudication rather than through the courts. It would seem the sheer volume of cases and fines handed out by the SEC would make hearing every one in front of a jury would be... logistically problematic.

If nothing else, the ruling could abolish the SEC practice of internal adjudication in cases that would fall under Common Law and declares the practice of leaving essential legislative details to be written by unelected officials after the bills to be unconstitutional... which could threaten numerous major pieces of legislation over the last 30 years.

The SEC is an important body that should have full investigative powers, but not be empowered with prosecuting or judging authority.

The courts are the proper place for hearing and adjudicating cases. I'm not a big fan of involuntary arbitration.

The SEC should be bringing cases to federal prosecutors.

 

[ttwtt78640]

Good.

This will make Congress actually do their jobs, instead of leaving it up to nameless, faceless unelected bureaucrats.

Maybe this will end the even more ridiculous notion (practice?) of civil asset forfeiture. Where a mere administrative (executive?) allegation allows a sentence to be imposed with no judicial branch involvement at all. Legislation allowing such nonsense should be ruled unconstitutional.

 

[LostInSeattle]

Good.

This will make Congress actually do their jobs, instead of leaving it up to nameless, faceless unelected bureaucrats.

How would you propose Congress do that? Rule-making for complex technical issues is far beyond both the capacity and expertise of lawmakers. They can decide what outcomes an Agency should seek for a particular regulation, but the nuts and bolts of how to accomplish that outcome - they simply cannot.

And bureaucrats and not nameless or faceless. They are actual people doing actual jobs. Do you refer to the people who design and build whatever car you drive as "nameless and faceless"? Just because you don't know their names and faces doesn't mean they don't have them. I belabor this point because many career agency employees are knowledgable, dedicated and hardworking individuals. You have no call to denigrate them en masse.

 

[ttwtt78640]

How would you propose Congress do that? Rule-making for complex technical issues is far beyond both the capacity and expertise of lawmakers. They can decide what outcomes an Agency should seek for a particular regulation, but the nuts and bolts of how to accomplish that outcome - they simply cannot.

Nonsense. Imagine the federal income tax law ‘outcome’ definition being “raise $X annually” and leaving the “nuts and bolts” up to the IRS.

And bureaucrats and not nameless or faceless. They are actual people doing actual jobs.

They are often ‘job for life’ folks and accountable to others in similar positions. Have changers critters pass laws consistig of essentially “do what we mean” and allowing the executive departments, agencies and programs deal with the “nuts and bolts” would leave the electorate even more powerless than having a periodic opportunity to vote for (or against) 3 (.5%) out of the herd of 535 congress critters - meanwhile the donor class can influence any or all of them 24/7/365.

Do you refer to the people who design and build whatever car you drive as "nameless and faceless"? Just because you don't know their names and faces doesn't mean they don't have them.

That is entirely different since buying/using a private good/service is 100% voluntary and they have no power to force you to ‘contribute’ to their annual income.

I belabor this point because many career agency employees are knowledgable, dedicated and hardworking individuals. You have no call to denigrate them en masse.

While a general or cabinet member may be knowledgeable, dedicated and hardworking that is not reason to allow them to define their own missions beyond some vague keep us safe or provide adequate healthcare, transportation, educational or agricultural ‘support’ using the many billons of public funds made available to you.

 

[Mycroft]

How would you propose Congress do that? Rule-making for complex technical issues is far beyond both the capacity and expertise of lawmakers. They can decide what outcomes an Agency should seek for a particular regulation, but the nuts and bolts of how to accomplish that outcome - they simply cannot.

And bureaucrats and not nameless or faceless. They are actual people doing actual jobs. Do you refer to the people who design and build whatever car you drive as "nameless and faceless"? Just because you don't know their names and faces doesn't mean they don't have them. I belabor this point because many career agency employees are knowledgable, dedicated and hardworking individuals. You have no call to denigrate them en masse.

The issue here isn't so much the "rules". It's the process and punishment after a rule has been violated. Instead of creating that process in the course of creating a law, Congress is in the habit of leaving that up to the bureaucrats. The result is that the bureaucrats end up being the judge, jury and executioner with very little opportunity for appeal.

 

[LostInSeattle]

Nonsense. Imagine the federal income tax law ‘outcome’ definition being “raise $X annually” and leaving the “nuts and bolts” up to the IRS.

You realize there are other agencies, right? How would MJT or Adam Schiff, neither of whom have experience with or knowledge of toxic waste, be capable of writing regs around the management of Superfund sites?

They are often ‘job for life’ folks and accountable to others in similar positions. Have changers critters pass laws consistig of essentially “do what we mean” and allowing the executive departments, agencies and programs deal with the “nuts and bolts” would leave the electorate even more powerless than having a periodic opportunity to vote for (or against) 3 (.5%) out of the herd of 535 congress critters - meanwhile the donor class can influence any or all of them 24/7/365.

Yes, one of the benefits of entering government service, as with the military, the merchant marine, police unions,, etc. is that you can get a pension after 20 years. On the other hand, you typically get less pay than you would in the private sector. All that's irrelevant. Don't you want people who are knowledgable doing stuff?

Also, rule-making processes involve substantial public comment. It is supposed to be an open, transparent process. It is certainly subject to political pressure, particularly by politicians who sit on the Appropriations committee for a particular agency. And yes, big donors influence those politicians. That's a problem with the political process, not the agencies themselves.

That is entirely different since buying/using a private good/service is 100% voluntary and they have no power to force you to ‘contribute’ to their annual income.

It is also different in that you can't find out who designed your car, but you can find out who the person is in an agency charged with doing such and such. Government is way more transparent in this regard.

While a general or cabinet member may be knowledgeable, dedicated and hardworking that is not reason to allow them to define their own missions beyond some vague keep us safe or provide adequate healthcare, transportation, educational or agricultural ‘support’ using the many billons of public funds made available to you.

You don't sound like you have actual experince working in government at any level. Trying reading some of the laws that direct agencies to do things. They are far more specific and detailed than what you describe. Have you ever attended a rule-making hearing?

 

[ttwtt78640]

You realize there are other agencies, right? How would MJT or Adam Schiff, neither of whom have experience with or knowledge of toxic waste, be capable of writing regs around the management of Superfund sites?

Yes, one of the benefits of entering government service, as with the military, the merchant marine, police unions,, etc. is that you can get a pension after 20 years. On the other hand, you typically get less pay than you would in the private sector. All that's irrelevant. Don't you want people who are knowledgable doing stuff?

Also, rule-making processes involve substantial public comment. It is supposed to be an open, transparent process. It is certainly subject to political pressure, particularly by politicians who sit on the Appropriations committee for a particular agency. And yes, big donors influence those politicians. That's a problem with the political process, not the agencies themselves.

It is also different in that you can't find out who designed your car, but you can find out who the person is in an agency charged with doing such and such. Government is way more transparent in this regard.

You don't sound like you have actual experince working in government at any level. Trying reading some of the laws that direct agencies to do things. They are far more specific and detailed than what you describe. Have you ever attended a rule-making hearing?

Laws should be as specific and detailed as possible. As a self-employed handyman and registered general contractor, I deal with plenty of government regulations - mostly building codes and compliance inspections. I (like the vast majority) lack experience working in government, but I (like most) must abide by its laws and rules. There is generally nobody elected who can say why a given rule was made, by (or approved by) who or how it could be changed, but plenty who claim to know that it is essential that such a rule be obeyed.

 

[LostInSeattle]

Laws should be as specific and detailed as possible. As a self-employed handyman and registered general contractor, I deal with plenty of government regulations - mostly building codes and compliance inspections. I (like the vast majority) lack experience working in government, but I (like most) must abide by its laws and rules. There is generally nobody elected who can say why a given rule was made, by (or approved by) who or how it could be changed, but plenty who claim to know that it is essential that such a rule be obeyed.

I hear you. I used to work in the commercial construction industry. Most of the building regs I dealt with concerned the state Energy Code. Washington has a Codes Council, which holds public meetings. Anyone can attend and provide input. But you still have to follow the code, whether you like it or not. And even then, enforcement is haphazard. Whether something is "up to code" during an inspection shouldn't vary so much according to who the inspector is, IMO. But then, if it didn't, I could also complain that inspectors were not sufficiently flexible for certain circumstances. Hell, life is imperfect.

My experience with local government (State, county, municipal) has ranged all over the map. Sometimes it is blinkered and unresponsive, very much the, "you can't fight City Hall" mentality. Those experiences ranged from frustrating to enraging. Other times it has been really good. There are agencies that exist to help you out with all kinds of issues.