Update/good news: www.cnn.com/2023/12/07/b...
18/ In addition, it seems to a colleague and me that an ALJs role is different from the PCAOB and other agencies in that ALJs do not investigate or prosecute, but more passively adjudicate, and their findings must be enforced by others (often Art III judges).
17/ In reserved time, the govt lawyer touches on removal first to distinguish this case: Here, the SEC has plenary review of the ALJ, so the earlier question about whether the president can "supervise" are resolved here: The president has sufficient info to supervise the SEC for its review.
16/ I think Alito laid out a majority opinion, narrowly limited to this statute on securities fraud: The fraud claim identified by the statute overlaps so closely with common law fraud that securities fraud triggers the 7th A. right to a jury trial. That's a sufficient basis & likely 5 or 6 votes.
Thank you! The brief summarizes the recent historical research against the unitary executive theory. And it summarizes the huge gaps and errors in the recent ostensibly originalist attempts to rescue the unitary theory.
15/ Now Jarkesy's lawyer is up. And Kagan is seeking a consensus. Excellent questions about why we have an administrative state. She uses workplace safety and OSHA as the model of preventing injuries, instead of waiting for injuries and then tort suits that are too late.
14/ If the Court finds a violation of the 7th A., then the presidential removal question is moot. Jarkesy would have had a right to avoid the ALJs altogether and get to Art III Court. The SEC & ALJ structure are moot in this case if Jarkesy should be able to choose federal court.
13/ Kavanaugh asks 1 question about removal: "Isn't this problematic under Free Enterprise?" (I.e., isn't this a double-layer of protections against removal?) Govt says no, Free Enterprise focused on a particular board with special powers, and had footnote 10, setting aside the question of ALJs.
12/ (The govt lawyer confirmed the conservatives' fears of expansive adjudication and administrative power, disregarding the 7th A.)
11/ Kavanaugh asks if the logic of the govt's position is that all civil penalties could be adjudicated by agencies. The govt. says "yes," with judicial review in Art. III. He says the due process clause is a better protection for the issues at stake here. I think the govt made a mistake here...