The Right to Remove in Agency Adjudication

Authors

Christopher J. Walker, University of Michigan Law SchoolFollow
David Zaring, University of Pennsylvania Carey Law SchoolFollow

Document Type

Article

Publication Date

2024

Abstract

In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication to an Article III federal court. This right to remove would avoid the constitutional issues Jarkesy presents while also advancing the goals of agency enforcement and adjudication better than the alternative of only bringing enforcement actions in federal court. Moreover, the SEC could adopt this right to remove now, before the Court decides Jarkesy, through internal administrative law. Congress, of course, could also enact it through ordinary legislation. It is also possible that the Court itself could adopt this remedy in Jarkesy, based on its recent decisions in United States v. Arthrex, Inc. and Axon Enterprise v. FTC.

Comments

©2024 The Ohio State University

Recommended Citation

Walker, Christopher J and David T. Zaring. "The Right to Remove in Agency Adjudication." Ohio State Law Journal 85, no. 1 (2024): 1-31.