The Fifth Circuit’s decision in Jarkesy isn’t particularly surprising. Indeed, it’s typical of a court that routinely hands down dubiously reasoned decisions that attempt to sabotage core functions of the federal government. We are less than two months into the Supreme Court’s current term, and it’s already heard two similar cases arising out of the Fifth Circuit — one of which declared a different agency, the Consumer Financial Protection Bureau, unconstitutional, and another which held that domestic abusers have a constitutional right to own a gun — neither of which the Supreme Court seems likely to affirm.
Jarkesy, however, could potentially end differently. None of the three rationales the Fifth Circuit offered for neutering the SEC are especially persuasive, but one of them is grounded in a pet project of the conservative Federalist Society known as the “unitary executive” — a project for which the current Court’s GOP-appointed majority has shown a great deal of sympathy.
This is the best summary I could come up with:
Federal law enforcement agencies routinely make decisions that are far more consequential for criminal and civil defendants than choosing which venue will hear a particular case.
Thus, in Atlas Roofing v. OSHA (1977), the Supreme Court held that many suits brought under a federal statute may be heard by an administrative law judge in a non-jury proceeding.
Taken to its logical extreme, this theory would eliminate the federal government’s ability to maintain a professional civil service made up of officials who are protected against being fired for purely political reasons.
If the Court were to implement a strong version of this theory, that would obviously be a tremendous boon to Donald Trump, who has already announced plans to replace thousands of nonpartisan civil servants with MAGA loyalists if he becomes president again.
But even these weaker versions could potentially give presidents power to manipulate elections, and to interfere with technocratic aspects of government that historically have been removed from partisan politics, such as the Federal Reserve.
This distinction matters because one of the leading arguments for the unitary executive theory is that it fosters democracy, by ensuring that policymaking decisions are made by officials who are accountable to an elected president.
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