SEC v. Jarkesy

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What We Cover

• What SEC v. Jarkesy held: the Seventh Amendment right to a jury trial applies when agencies seek civil penalties for fraud
• Why the SEC preferred in-house adjudication — and what structural advantages it gave the agency
• The Seventh Amendment analysis: how the Court determined that securities fraud claims are the type of action that would have been tried at common law
• The distinction between cases seeking monetary penalties and cases seeking other types of agency relief — and why it matters for which forum applies
• How Jarkesy interacts with the broader debate over ALJ independence and the structure of agency adjudication
• The implications for other agencies: whether the FTC, EPA, OSHA, and other agencies that impose civil penalties through internal proceedings face similar constitutional challenges
• How this decision fits into the larger pattern — alongside Loper Bright, Corner Post, and the major questions doctrine — of the Court constraining agency power

Full Rough Transcript

S2E8 Transcript — SEC v. Jarkesy (CORRECTED)

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress for reasons we’ll be addressing over the course of this series.

Gwen: All right, Marc, we are going back to the babysitter. Let’s say the parents leave a note that says the kids must have milk with dinner.

Marc: OK, that’s pretty specific, but all right. Milk’s good for your bones.

Gwen: So this rule that you have to have milk with dinner, would you say that has existed since time immemorial?

Marc: No, that is definitely very specific to individual households. I mean, some families will do juice, some do water, some do wine, some don’t care.

Gwen: It’s a rule because the parents said so. Okay, so this is a created rule. What about “don’t hit your sister”?

Marc: Okay, that’s getting a little different. You shouldn’t hit people. It’s wrong whether the parents specifically said it or not.

Gwen: So that one, we don’t necessarily need a household rule to know that you can’t hit people. That obligation existed before the parents said anything.

Marc: Sure. One rule is invented by the household. The other one is just, I don’t know, common sense.

Gwen: All right. Let’s say babysitter’s there. It’s 6:30 on Tuesday. The kid is refusing to drink milk. Babysitter says, drink it. He says, no. She says, fine, no dessert. Handled.

Marc: Yeah, clearly within her authority. The parents made the rule. She’s enforcing it.

Gwen: So then an hour later, the kid hits his sister. So what is the babysitter going to do now?

Marc: OK, she should handle it. Separate them, send him to his room. No screens for the rest of the night. You know, whatever the range of household consequences are.

Gwen: That makes sense. She saw it. She’s right there. She knows you started it. She knows the context. She’s been with them all evening. It would be absurd to say, sorry, hitting predates my authority as a babysitter. I need to call in an outside party to adjudicate this.

Marc: Yeah, nobody would expect that. The babysitter should be able to handle both kinds of situations.

Gwen: Yes. Whether the kid broke a household rule or did something that’s been wrong since the beginning of time, the babysitter is the right person to deal with it in that moment.

Marc: OK, so that sounds like we’re leading up to a problem in administrative law.

Gwen: Indeed, we are. For agencies, there is a line of Supreme Court cases that goes back almost 200 years that says it matters what kind of rule was broken, not for practical reasons, for constitutional reasons. When Congress creates a brand new obligation that didn’t exist before, like a regulatory requirement, licensing scheme, reporting mandate, there’s no question Congress can assign that to an agency. No jury. These are public rights.

Marc: Okay, the milk rule. Congress made it. The babysitter enforces it.

Gwen: Yeah, but if somebody violates an obligation that existed before any agency, like fraud or trespass, the equivalent of hitting your sister, these are private rights. And private rights have always carried protections, including the right to a jury trial under the Seventh Amendment.

Marc: OK, so this is the hitting rule. It predated the babysitter. So it has to go through the full panoply of process.

Gwen: Right. It has to go to a court with a jury, even if the babysitter is right there, even if she saw the whole thing, even if she’s been handling exactly these kinds of disputes for decades.

Marc: Although that’s— I mean, we could have a babysitter who’s been doing it for decades. A professional babysitter.

Gwen: Yes. Frankly, better at it than whoever else would be.

Marc: So that feels like it creates this real tension, right? The constitutional principle says one thing and the practical reality says another.

Gwen: Yes, that is exactly the tension. And for most of administrative law, it’s been pretty manageable. Most of what agencies do really are genuinely new obligations. Workplace safety standards, environmental regulations, licensing requirements. These are milk-type rules. Congress created them. Agencies enforce them. No constitutional problem. But then some agencies do enforce things that look a lot more like the hitting rule.

Marc: Yes. So in particular, a lot of agencies enforce variations of fraud. The SEC goes after fraud. The FTC goes after deception. These agencies have been handling these types of cases in-house for decades and doing it just fine. They’re like the babysitter who saw the whole thing.

Gwen: But the Supreme Court said that for certain kinds of cases, that doesn’t matter. If the underlying wrong existed before the agency did, the Constitution requires a jury.

Marc: Okay. So the question isn’t whether the babysitter did a good job. It’s whether they had the authority to act in the first place.

Gwen: Exactly. This is SEC v. Jarkesy. And whether you think the court got it right depends on whether you think the constitutional categories should bend to practical reality or whether practical reality should bend to the Constitution.

Marc: All right. Before we get to Jarkesy, we have to talk about the framework the court was working with. This wasn’t new. Like I said, this distinction between public rights and private rights had been part of constitutional law since the 1850s.

Gwen: If we go back all the way to the 1850s, we have Murray’s Lessee. This is an instance where the Treasury Department seizes property to recover money that a customs collector had embezzled. So the question is whether the government could do that through an administrative process with no court, no jury, or whether the property owner had a right to go before an Article III judge.

Marc: Okay. And even then, the question was whether administrative processes could substitute for judicial process.

Gwen: Yes. And so the court drew a line that shaped administrative law ever since. Here’s what it said.

Marc: There are matters involving public rights which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.

Gwen: All right. So we have this category of disputes called public rights where Congress has discretion. It can send it to a court, but it can also set up its own system.

Marc: But there is a boundary.

Gwen: Right. The court made clear that Congress’s flexibility doesn’t extend to the types of claims that law and equity courts had traditionally handled. Things like property disputes, fraud, contract actions. Those stayed with Article III courts.

Marc: Yeah. And so even in 1855, there’s a constitutional floor. Congress gets the flexibility on one side of the line, but not on the other.

Gwen: Right. But the modern version of this doctrine, the one Jarkesy had to deal with, came from a 1977 case called Atlas Roofing, or Atlas Roofing v. Occupational Safety and Health Review Commission. Atlas Roofing is essential to understanding Jarkesy because it is the case that defined when agencies can impose civil penalties through their own proceedings without running afoul of the Seventh Amendment.

Gwen: OSHA cited Atlas Roofing for workplace safety violations, and they imposed civil penalties. And Atlas Roofing said, you can’t fine us without a jury trial. That’s what the Seventh Amendment says.

Marc: And the court said?

Gwen: The court upheld OSHA’s enforcement scheme. Here’s the key passage. This is the language that agencies have relied on for almost 50 years.

Marc: When Congress creates new statutory public rights, it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment’s injunction that jury trial is to be preserved in suits at common law. Congress is not required by the Seventh Amendment to choke the already crowded federal courts with new types of litigation or prevented from committing some new types of litigation to administrative agencies with special competence in the relevant field.

Gwen: That last part is really important where they’re talking about new types of litigation. Atlas Roofing said when Congress creates brand new regulatory obligations and then creates an enforcement mechanism for those, the whole package is a public right.

Marc: Okay. Congress built the rule, and Congress gets to decide how it’s enforced.

Gwen: Right. But there’s another issue. What was OSHA actually penalizing? A company’s negligence causing physical harm. That has common law roots going back centuries.

Marc: Couldn’t Atlas Roofing have just said, this is really just a negligence suit, and negligence suits always have had juries?

Gwen: Yes, absolutely. That’s functionally what they’re arguing. And that’s what made Atlas Roofing so important. The court didn’t look underneath the statute to find common law analogs. It looked at the whole statutory scheme that Congress had built. OSHA standards, OSHA inspections, OSHA penalties, and said this is a new regulatory program. And the fact that negligence existed at common law didn’t matter.

Gwen: Right. It didn’t matter because Congress had created this comprehensive enforcement system that was completely different in kind from a private tort suit.

Marc: So Atlas Roofing says when Congress builds the whole system, the system is the public right, even if pieces of it resemble things courts used to handle.

Gwen: Right. That’s the logic. And here’s the passage that explicitly talks about the boundary.

Marc: In cases in which public rights are being litigated, e.g., cases in which the government sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact, the Seventh Amendment does not prevent Congress from assigning the factfinding function and initial adjudication to an administrative forum with which the jury would be incompatible.

Gwen: When Congress creates the right, Congress controls the remedy, including whether you get a jury. And again, that held up for decades, which is why what happened next was so striking.

Gwen: Here is where the framework ran into trouble. Congress didn’t just create regulatory schemes for genuinely new obligations. It also built enforcement systems that include conduct that certainly seems like or similar to other conduct with deep common law roots.

Marc: Like the SEC.

Marc: Yes. So Congress created the securities laws, the Securities Act of 1933, Securities Exchange Act of 1934. These statutes create new obligations. They required registration. They required disclosure. There were specific trading rules. Those were clearly statutory creations. Those are public rights.

Marc: Okay. So far, so good.

Marc: So what does the SEC actually prosecute most often, though?

Gwen: Fraud. Making false statements to investors. Misleading people to take their money.

Marc: Okay. That seems to cut two ways, though. Section 10(b) and Rule 10b-5 create specific obligations that didn’t exist at common law. Insider trading prohibitions, the duty to disclose material information to the market, those are statutory creations. You couldn’t bring a 10b-5 case in 1791 because, candidly, 10b-5 didn’t exist.

Gwen: But at the same time, if you strip away the statutory framework, what’s left underneath? Someone lied to get someone else’s money. That’s common law fraud. Courts have been trying that with juries for centuries.

Marc: Every modern statute builds at least to some extent on something that existed before. Employment discrimination builds on wrongful discharge. Environmental penalties build on nuisance. Antitrust builds on restraint of trade. And Atlas Roofing itself, negligence that kills a worker, has deep common law roots and the court still called it a public right.

Gwen: Right. If you always dig underneath a statute and find a common law ancestor, the public rights doctrine collapses.

Marc: And so which is it? Is securities fraud a new public right or is it an old private one?

Gwen: You can defend both characterizations, but you could have said exactly the same thing in Atlas Roofing. Negligence killed a worker. That has centuries of common law history. The court didn’t care. It looked at the statutory scheme Congress built and called it a public right.

Marc: Which means the government had a very simple argument. This is the exact same case.

Gwen: Right. And in oral argument, Justice Kagan made it for them. She told the government’s lawyer that if you read Atlas Roofing and then look at the question presented, you wonder why this case is even here, since Atlas Roofing simply resolves it.

Marc: That’s a strong opening position from the bench.

Gwen: It is, with good reason. And she was no gentler with Jarkesy’s attorney. She said Atlas Roofing could not have been clearer that the Seventh Amendment was no bar. And she walked through the parallel herself. The OSH Act builds a prophylactic scheme on top of an existing common law remedy, and the securities laws do the exact same thing.

Marc: Okay. Was he successful distinguishing it?

Gwen: No. He really wasn’t. He eventually conceded that this was a settled point only because no one had challenged it since Atlas Roofing. Kagan agreed and added that that was because nobody had had the chutzpah to try. Everyone really did think these were settled questions.

Marc: So the majority had to get around all of that.

Gwen: Right. And so the answer in their opinion is just that fraud is different, that it’s so close to the historic core of common law jury trials that Congress cannot reassign it. But the opinion never explains why negligence causing death is further from that core than fraud causing financial loss. It’s really an assertion, not an argument.

Marc: OK, so what then changed? If nobody had the chutzpah to challenge this for decades, why now?

Gwen: All right. So two things. One, this court has indicated a willingness to reconsider virtually every aspect of the administrative state. And then for this case specifically, there was Dodd-Frank. Before it was passed in 2010, the SEC could only seek civil penalties through in-house proceedings against regulated entities, broker-dealers, investment advisors, people who had registered with the SEC. If they wanted penalties against anyone else, they had to go to federal court.

Marc: And Dodd-Frank removed that limitation.

Gwen: Exactly. Suddenly, the SEC can pursue civil penalties against anybody it wants through its own administrative proceedings. And so the SEC starts routing more and more enforcement actions through their own process in-house.

Gwen: Which is where George Jarkesy shows up. He ran two hedge funds. The SEC accused him of misleading investors about the fund’s size and performance and investment strategy. These were violations of the Securities Act. They brought the case in-house. Through their own enforcement division, prosecuted it. An SEC administrative law judge presided, and there’s no jury.

Marc: And how long did that take?

Gwen: It dragged on for years. And we can also think about the asymmetry here. The SEC’s enforcement division has the full machinery of a federal agency. And Jarkesy is just one defendant, hiring his own lawyers, fighting the agency on the agency’s home court.

Marc: Right. The rules of evidence were more relaxed than federal court, which also generally favored the agency presenting the case.

Gwen: What kind of penalties were there?

Gwen: There were civil penalties of $300,000 and a lifetime bar from working in the industry. He could never work in securities again.

Marc: Okay. They weren’t just telling him to stop. They were punishing him. And his argument was straightforward.

Marc: Here’s, I guess, we probably should have done this earlier, but we might as well read the Seventh Amendment now.

Marc: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.

Gwen: So “preserved.” The Seventh Amendment doesn’t create a new right. It preserves the right as it existed when the Constitution was ratified. So the question becomes, in 1791, would a case like this have gone to a jury? Someone accused of lying to investors to take their money, that potentially could be a common law fraud case.

Marc: So that’s Jarkesy’s argument. And the SEC’s response is Atlas Roofing itself, that Congress created the securities laws. Congress created SEC enforcement. It created this comprehensive statutory scheme as a public right, just like OSHA’s scheme was also a public right.

Gwen: OK, what did the court say? Let’s read from Chief Justice Roberts’s opinion.

Marc: The threshold issue is whether this action implicates the Seventh Amendment. It does. The SEC’s antifraud provisions replicate common law fraud, and it is well established that common law claims must be heard by a jury.

Gwen: The court here is saying this really isn’t a new obligation that Congress just invented. It’s fraud. Courts have been trying fraud with juries for centuries. And you can’t escape the Seventh Amendment by calling common law fraud “securities fraud” and routing it through an agency.

Marc: OK, but the label didn’t control in Atlas Roofing either. And the agency won. OSHA’s workplace safety violation label was covering what was functionally a negligence claim. The court said it was a public right because Congress built the statutory scheme.

Gwen: Roberts is reaching the opposite result.

Marc: All right. So the majority is claiming this is about proximity to the common law core and that fraud is closer to the heart of what juries did.

Marc: But the opinion doesn’t give a clear test for measuring that distance.

Gwen: No, it doesn’t, which is probably because they’re the same distance. But it says securities fraud is “in the nature of a common law action.” And again, it doesn’t explain why OSHA penalties for conduct that kills someone aren’t equally in the nature of a common law action.

Marc: Which means the next time an agency action gets challenged, courts are going to have a very hard time predicting which side of the line it’s on.

Gwen: Right. So that uncertainty is itself a consequence of this opinion.

Gwen: So here’s the law after Jarkesy. Atlas Roofing is still good law for truly new obligations. Congress can still assign enforcement of genuinely novel regulatory requirements to agencies without having to use juries. But if the government is seeking civil penalties for conduct that is “in the nature of a common law action,” the Seventh Amendment will require a jury.

Marc: OK, but the court never clearly explains what “in the nature of” means or how close is too close.

Gwen: Right. And there are a lot of agency enforcement actions that live in this gray zone. The space between “Congress clearly invented this obligation” and “this is just a relabeled common law claim.”

Gwen: So the False Claims Act. Someone filed a fraudulent invoice with the federal government to get paid for work that they didn’t do. That’s fraud. But the injured party is the federal treasury. The obligation to bill accurately is entirely statutory. And the government is both the victim and the enforcer.

Marc: So is that a public right because it’s about protecting government funds or a private right because the mechanism is fraud?

Marc: Right. You can characterize it either way.

Gwen: There’s also tax fraud. The obligation to pay income tax is purely statutory. There’s no common law analog at all there. But if you file a fraudulent return, the IRS isn’t just saying you miscalculated. It’s saying you lied.

Gwen: Right. And lying to obtain money is fraud at common law. So is the penalty about the tax obligation or about the fraud?

Marc: Okay. What about FDA misbranding cases?

Marc: Okay. We can have a supplement company putting false claims on a label. And there are many supplement companies putting false claims on labels. The specific labeling requirements are modern regulatory creation, but selling someone a product by lying about what’s in it, that’s been actionable since before the Constitution was written.

Gwen: Environmental penalties?

Marc: The EPA fines a company for dumping chemicals in a river.

Gwen: All right, so potentially safer for the agency, but nuisance is another cause of action. And same thing for the EPA pursuing a company for knowingly filing false compliance reports.

Marc: OK, lying to the government, that starts to look a lot more like fraud, though.

Gwen: So the same agency could have some enforcement actions that require juries and others that don’t, depending on what the underlying claim looks like.

Marc: And when agencies and defendants disagree about the category, courts will then step in and decide.

Gwen: Yes, that is a significant shift.

Marc: And the dissent makes a constitutional argument that goes beyond just counting affected statutes. Here, read this from the Sotomayor dissent.

Marc: The constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress. Today’s decision is a massive sea change. Litigants seeking further dismantling of the administrative state have reason to rejoice in their win today. But those of us who cherish the rule of law have nothing to celebrate.

Marc: That’s pretty strong language.

Marc: It is. And there’s a structural argument behind it. Her concern here is that when Congress creates a comprehensive regulatory scheme and assigns enforcement of that to an agency, the entire scheme is a public right. That’s what Atlas Roofing said. You can’t disassemble the machinery and say, this gear looks like it came from an older machine, so it needs a jury.

Marc: Because Congress built the securities enforcement system as a unified whole.

Gwen: Right. So the fraud provisions, the disclosure requirements, the penalty structures, they all work together. Pulling out the fraud pieces and sending them to federal court while leaving the rest in-house doesn’t just change procedure, it breaks the design.

Gwen: That’s basically the Atlas Roofing argument applied consistently. Whether you think that’s the right answer or not, it is a serious constitutional position that four decades of practice supported. The majority had to work around Atlas Roofing to get where it got. And whether you think they succeeded depends on whether “fraud is different” is a constitutional principle, or just an intuition from a court that currently disfavors the administrative state.

Marc: The SEC can still bring fraud cases, can’t it? They just have to go through federal court, not their own internal processes.

Gwen: Yes, they can still bring these cases, but the forum changes things about how the enforcement works. When the SEC was bringing enforcement actions in-house between 2010 and 2015, they won over 90% of the time.

Marc: Wow, 90%.

Gwen: And in federal court at the same time, they were winning under 70% of the time.

Marc: Okay, that’s a significant gap.

Gwen: There are legitimate structural reasons for the gap. Administrative proceedings are designed for these cases. The judges here are specialists. The process is streamlined. They may well have been routing stronger cases in-house. And that system caught a lot of real fraudsters.

Marc: Yes. It captured Ponzi schemes, insider trading rings, market manipulation. This in-house enforcement process identified and punished genuine wrongdoing efficiently for years.

Gwen: But the ability to bring things in-house also gave the agency leverage to push settlements.

Marc: Sure. If you’re a defendant and you know the SEC wins 90% of the cases in their own forum, you’re probably going to settle, even if you think you’re innocent. Why fight when the numbers are that tilted?

Gwen: Right. So it’s also possible that people didn’t contest things they might have if they thought it was going before a jury. The forum choice doesn’t just change the outcome at trial. It could affect whether there’s a trial at all.

Gwen: And we’ll never really know because settlements don’t produce opinions. Those cases just disappear into consent orders.

Gwen: OK, so that’s the case for Jarkesy. Bringing these cases back to federal court levels the playing field. But there’s also a cost. Federal court litigation is expensive for the government. The SEC has a limited enforcement budget. If every fraud case has to go through full federal court litigation with a jury, that is more expensive. The SEC is going to be bringing fewer cases.

Marc: So, Jarkesy might actually reduce enforcement.

Gwen: It almost certainly will, which means that more fraud goes unpunished. The same structure that protects innocent defendants from the pressure of in-house proceedings also protects guilty ones.

Marc: Yeah. It feels like there’s a couple of things that are true here at the same time.

Gwen: Yes, it is. And, you know, different cases, different facts. But structurally, the shift is clear. Agency enforcement just got harder and more expensive.

Marc: So is this an instance of the court crib-strangling administrative agencies?

Gwen: One of the many. Yes. One of the many. This is the same year as Loper Bright, same year as Corner Post.

Marc: And this was like the minor case that year.

Gwen: Oh, wow. OK. That was a bad year.

Marc: That’s when you’re like, oh, the administrative state can’t get any worse than this. Got it.

Gwen: All right. So let’s be precise about what this case actually changes and what it doesn’t. It says when the government seeks civil penalties, monetary punishment for conduct that resembles a common law cause of action like fraud, at least as it’s used by the SEC, the defendant gets a jury trial. That limits the SEC and it will likely limit other agencies that pursue similar enforcement actions.

Marc: OK, what doesn’t it do?

Gwen: It doesn’t end agency adjudication altogether. Social Security hearings continue. Immigration proceedings continue. Benefit determinations, licensing decisions, permit disputes. These are all clearly public rights, all untouched.

Marc: So this isn’t a wrecking ball aimed at all agency adjudication. But for enforcement actions, particularly since no one knows where the line is, it is a really big deal. Entire enforcement programs were built around it. The SEC, the FTC, the CFTC. They all structured their operations on the assumption that their comprehensive statutory schemes were public rights, just like OSHA’s.

Gwen: And let’s just remind ourselves that Dodd-Frank was adopted by Congress specifically in the context of a public that had lost confidence in the way securities were being handled, both by the government and in the private sphere. And so Dodd-Frank put the guardrails around the securities practice in order to create that confidence back for the public.

Marc: Yeah, this was important. They’re obviously trying to increase enforcement by the SEC. This decision has the opposite effect.

Marc: So every agency with enforcement power is going to have defendants arguing that Jarkesy requires a jury for their case.

Marc: Yes, and some will succeed. Some won’t. The boundaries will take years to settle. They will also probably be different in different places because that’s how circuit splits work.

Marc: And while they settle, agencies will not know what they can do in-house.

Marc: Right. We talked about how adjudication exists for efficiency, expertise, and volume. If you’re moving cases to federal courts, you’re losing all three of those. Federal courts are slower, federal juries are generalists, and the federal docket is already overloaded.

Gwen: So, the other thing, Jarkesy answered the Seventh Amendment question, but it left that other question hanging. The ALJ independence question from Lucia.

Marc: Right. If adjudicators are officers of the United States and if officers must be removable by the president, then the for-cause protection that ALJs currently enjoy might be unconstitutional. The Fifth Circuit said that ALJ independence was unconstitutional and the Supreme Court didn’t disagree. It just didn’t need to decide it because it resolved the case on Seventh Amendment grounds.

Marc: And so that’s still out there.

Marc: It is, and Jarkesy makes clear that the court is really skeptical of agency adjudication if any sort of punishment is involved. Even if ALJs potentially survive for benefits cases, which they might, their role in enforcement proceedings is probably also under a real cloud.

Marc: Especially combined with what’s happening on the removal power front that we covered in Season 1.

Gwen: Right. It all connects. The same court that’s skeptical of agency independence is also skeptical of agency adjudication, at least when the stakes look like punishment rather than benefits administration.

Gwen: Okay, so here’s what I’m taking away. The public rights doctrine says Congress can assign truly new obligations to agencies for adjudication without juries. But when Congress gives agencies enforcement power over conduct that looks like common law claims, especially fraud, the Seventh Amendment still applies. At least that’s what the law is right now.

Marc: Yeah. So the hard part isn’t the principle. This is reasonably intuitive. The hard part is that this is coming almost 50 years after Atlas Roofing. The agencies were operating on the understanding that when Congress builds a comprehensive regulatory scheme, the whole scheme is a public right, even the parts that resemble common law claims. Jarkesy says that understanding was wrong, at least for fraud, and a lot of enforcement infrastructure was built on the old understanding.

Marc: Yeah, Atlas Roofing drew a line. Jarkesy then moved it.

Gwen: Yes, that’s what I would say. But people could argue it just clarified where that line always was.

Gwen: OK, what’s next then? We’ve been talking about constitutional limits on adjudication, who can decide, which cases they can keep in-house. Next time, we are following one person, a Social Security disability claimant, from the moment they filed their application all the way through to a final decision. Every stage, every waiting period, every decision point.

Marc: Okay, so the entire administrative journey.

Gwen: Exactly. So you can see it before we start diving deep into parts of it.

Marc: So that does it for today’s episode on Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time where we’ll continue to dive into the contours of administrative law, because remember, you can’t fix what you don’t understand.

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