Readers know that we here at The Price of Liberty have little truck with those who believe that democracy is the only acceptable form of government. Shucks, we don’t believe in human mandatory government. Similarly we have serious problems with government-appointed and -paid courts and judges and all the rest of the adjudication system.
We read that the head (chief judge?) of Ukraine’s supreme court has been arrested (and presumably suspended or removed) for “corruption.” One specification claims he took $2.7 million in bribes on a single case. Now, compared to the FedGov, this guy is a piker: look at the godfather now in DC. And too many past and present members of Congress. But still, it is more proof that democracy is always corrupted by bribery – either legal or illegal.
We have long used the example of “two wolves and a sheep” voting on lunch to show why we despise democracy. It is the dictatorship of the majority. And it extends to much that is wrong about mandatory government: monopolies are always bad. Particularly in a nation’s court system. Even in nations with jury systems, far too much power is given to judges and panels of judges. As far as we know, Ukraine has no juries, and certainly we know of no country that has juries for their supreme court.
Ukraine reminds us that in a democracy, virtually everything – and everyone – is for sale.
At the same time, a correspondent reminds us that a Fifth Circuit Court panel here in the States had decided 2-1 that administrative law “judges” and “courts” are unconstitutional, at least for the Securities and Exchange Commission (SEC). This was a full year ago. The Fifth covers Louisiana, Mississippi, and Texas.
This is highly significant. In Jarkesy v. SEC, No. 20-61007, 2022 U.S. App. LEXIS 13460 (5th Cir. May 18, 2022), the decision reads in part:
We hold that:
https://www.ca5.uscourts.gov/opinions/pub/20/20-61007-CV0.pdf
(1) the SEC’s in-house adjudication of Petitioners’ case violated their
Seventh Amendment right to a jury trial; (2) Congress unconstitutionally
delegated legislative power to the SEC by failing to provide an intelligible
principle by which the SEC would exercise the delegated power, in violation
of Article I’s vesting of “all” legislative power in Congress; and (3) statutory
removal restrictions on SEC ALJs violate the Take Care Clause of Article II.
Because the agency proceedings below were unconstitutional, we GRANT
the petition for review, VACATE the decision of the SEC, and REMAND
for further proceedings consistent with this opinion.
Now these are all pretty damning, so why haven’t we heard about it in a year? First, the circuit court remanded it – sent it back to the lower court. Second, the SEC (now joined by other federal agencies) has been trying for nearly a year to file an appeal to bring it in front of the SCOTUS. In fact, they were just given another extension, until 9 June 2023. They seem to be having a problem coming up with sound constitutional arguments!
The feds are running scared. If the Nine Nazgul uphold this 5th Circuit decision, it would presumably apply to all federal agencies’ pet administrative law judges (“ALJs”) and seriously weaken the agencies’ power to force and punish businesses, people, and even State and local governments.
I think that most lovers of liberty – and certainly us at TPOL – have long pointed out that ALJs and similar operations are not just unconstitutional but also just plain evil. They allow agencies – including cities and towns and other local governments – to be judge, jury, prosecutor, and “executioner” (as far as levying fines and seizing property). Some of us have suffered from these things, and known of many more people who have.
But many of the same problems (not just the three in this case) exist with the “real” court system. (We hesitate more and more calling it a justice system.) The salaries of judges are paid by the government – which is generally either the defendant, the prosecuting party, or a very interested party. That in and of itself seems (to an unbiased observer) to be a kind of corruption. Even without bribery and other illegal corruption, this is definitely a bad situation. Add in bribery? Who has the deepest pockets? Almost always government, directly or indirectly.
Juries can be at least a partial solution: it is harder to bribe or threaten 12 men and women than just one or three judges. But only if judges are constrained by enforced law as to what they can do.
The Price of Liberty 
It will be interesting to see how all this admin law works out.
For those who have never been through this abomination, you have to exhaust all the options within the administrative agency before you can bring it to an Article III court. The first step is to pay for your hearing before the administrative judge, whose job is to decide whether you are in violation of the regulation his agency wrote and says you have violated. (Conflict of interest?) Once he rules against you, you first have to pay the assessed fine to get permission to appeal his decision, then you have to pay court and lawyer costs again to be heard by their appellate process, which is only going to decide whether the regulation exists and whether the judge cited it properly, not whether you did anything wrong. And, of course, you lose.
Now you are finally permitted your day in a real court. Sort of. This Article III court is going to take the findings of the administrative court as the facts of the case. Whether you did anything wrong cannot generally be argued here. This step is usually just a rubber stamp, at your expense, because this court is almost certainly going to apply Chevron deference; that is, unless the regulation is egregiously overstepping the agency’s authorizing legislation, like, say, CDC issuing an eviction moratorium, the A3 court is not going to grant relief. And, if you recall the events of the last couple years, they probably will not even in such obvious cases of overreach.
Now you maybe get to go to the District level Appellate court, where they still do not consider the facts of the matter, but just whether the lower court erred in applying Chevron deference or made some process error. Again, at your expense.
Now, finally, well into 6 or even 7 figures or more, is your only real possibility — you can appeal to the Supreme Court, and IF they take your case, which they rarely do, and IF they are not all drunk that day, they MIGHT find the agency overstepped its authority, or, on extremely rare occasions, that Congress overstepped it’s authority in delegating a power it did not have. Again, at your expense. What they will not do is give you anything you would recognize as justice. Most likely, if they find in “your” favor, all that results is the agency is required to reword the regulation, and your case will be remanded to the first administrative court for another frolic through the system at your expense.
Did I mention that even if you win at the USSC, all the money you blew in the previous kangaroo courts is gone? Did I mention that if the A3 court (either level) decided not to extend Chevron, the agency still does not have to return the fine? But now at least you are granted the government’s permission to file a civil suit against the agency to make them return the fine. If you have been following civil asset forfeiture, it usually goes pretty much like that.
I hold out hope that Jarkesy leads to reform of the current administrative injustice system, but realistically, I think the chance is next to nil.
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Civil lawsuits in federal courts have eight person juries. Not twelve. Secondly, civil lawsuit jury decisions can and will be thrown out by the presiding judge, should he so choose. Been there. Done that.
Why pursue a civil lawsuit against ANY entity of .gov in Amerika today ? The citizen plaintiff is wasting much of his life and much of his money trying to hold ANY entity of .gov defendants to a legal standard, courtesy a civil trial in a federal courtroom.
Justice for citizens trying to hold “government” accountable for its wrongdoings is a joke ! Just-us is not for the common, citizen Patriot. If there was any citizen justice in a trial against .gov, there would be lawsuits galore against the corruption one calls “government”.
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Heck, the Supreme Court guy in Ukraine is a piker not just by comparison to the fedgov in general, but to his direct counterpart, Clarence Thomas, alone. In Ukraine, you might get arrested/prosecuted for secretly taking bribes. In the US, you can do it openly for years, mumble something about paperwork errors when people finally notice, and not even have to resign in disgrace, let alone face any punishment.
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Hmmm. Is that because the Ukrainians have less experience in “democracy” than the FedGov and its denizens do?
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