Strict Scrutiny Taking a Hatchet to Government Agencies
Dec 4, 2023
Former clerks for Justice Sandra Day O'Connor, Oona Hathaway and Sam Sankar, discuss her legacy. They explore challenges to the SEC's authority, Constitutional implications of the Seventh Amendment, and the classification of drugs as controlled substances. They also delve into conservative groups using a Supreme Court decision to challenge programs addressing maternal mortality among black women. Additionally, they share personal experiences of working for a prominent figure, including anecdotes about dinners and fitness activities. They discuss Justice O'Connor's disapproval of the current court and protests outside the Supreme Court.
AI Snips
Chapters
Transcript
Episode notes
ALJ Enforcement Is Widespread And Fragile
- SEC administrative enforcement through ALJs is common across many agencies and historically supported by precedent.
- A ruling requiring juries for such claims could unsettle EPA, FTC, OSHA and dozens of other agency adjudications.
Public Rights Can Be Assigned To Agencies
- Article III doctrines allow Congress to assign public-right claims to agencies when the government is a party.
- The government conceded cases enforcing federal law against private parties qualify as public-right matters assignable to agencies.
Seventh Amendment Used To Recast Separation Of Powers
- Challengers argue Seventh Amendment juries should apply when a statutory claim resembles common-law suits.
- The majority of justices may use the Seventh Amendment route to limit agency adjudications despite prior precedent like Atlas Roofing.