Justice Clarence Thomas sent a warning shot across the bow of the expansive administrative state in a recent opinion suggesting it was time the court upend the litany of agencies that act as quasi-judges and slap fines or other penalties on people with only an abbreviated chance for regular judges to get involved.
The Securities Exchange Commission and the Federal Trade Commission both claim such powers, and Justice Thomas said the two agencies go well beyond what the founders of the country envision.
In a unanimous decision, the justices said that plaintiffs can go directly to the regular courts if they want to challenge the way the agencies are set up under the Constitution. Under current practice, the regular courts, also known as Article III courts because of their place in the U.S. Constitution, defer too much power to ALJs, said Justice Thomas. For example, Article III judges defer to fact-gathering and evidence done in the course of the administrative law proceeding when cases emerge from the agencies.But he said Americans’ rights are being trampled by short-circuiting the usual Article III court review process.
“Justice Thomas’ concurrence does not bode well for the regulatory state. If he can gain a majority of justices to his viewpoint, you could see administrative courts topple one by one,” said Jack Yoskowitz, a partner at Seward & Kissel LLP.
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