The Right to Remove in Agency Adjudication

31 Pages Posted: 1 Dec 2023 Last revised: 14 Jun 2024

See all articles by Christopher J. Walker

Christopher J. Walker

University of Michigan Law School

David T. Zaring

University of Pennsylvania - Legal Studies Department

Date Written: November 26, 2023

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.

Keywords: administrative law, agency adjudication, separation of powers, agency independence, nondelegation, removal power, internal administrative law

Suggested Citation

Walker, Christopher J. and Zaring, David T., The Right to Remove in Agency Adjudication (November 26, 2023). Ohio State Law Journal, Vol. 85, pp. 1-31, 2024, U of Michigan Public Law Research Paper No. 24-016, The Wharton School Research Paper, Available at SSRN: https://ssrn.com/abstract=4644940

Christopher J. Walker (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

HOME PAGE: http://www.chrisjwalker.com

David T. Zaring

University of Pennsylvania - Legal Studies Department ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

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