I. Introduction

Administrative Law Judges (“ALJs”) are essential to the federal government. They operate as members of the executive branch exercising quasi-judicial power for hearing administrative law disputes within the context of the Administrative Procedure Act (“APA”).[1] As the Supreme Court noted, an ALJ is “‘functionally comparable’ to that of a judge,”[2] as they “hear evidence, decide factual issues, [ ] apply legal principles in all formal [APA] adjudications.”[3] As such, ALJs play key roles in adjudicating rights, ensuring due process protections, and enforcing various civil schemes Congress has created to empower federal agencies to administer federal laws and regulations.[4]

Despite these powers, ALJs are not federal judges in the traditional Article III sense as “they lack the defining characteristics of Article III deities.”[5] For example, Article III judges are appointed pursuant to the procedure outlined in the Appointments Clause, receive salary and tenure protection so long as they have “good behavior,” and cannot be reversed by the Executive Branch.[6] Meanwhile, ALJs do not go through the Appointment Clause process, receive limited salary and employment protections, are subject to executive removal, and can have the very agencies that employ them reverse their decisions.[7]

ALJs have been criticized over separation of powers and independence concerns,[8] inadequate accountability to either the public[9] or the president,[10] failure to rigorously examine cases,[11] and, in the context of enforcement of civil regulatory schemes, for adjudicating individual rights without affording litigants the Seventh Amendment protections of a jury trial.[12] These critiques have meant that regulators, through ALJs, have long been the target of efforts to undermine the regulatory power of the federal government.[13]

Enter George Jarkesy and his firm Patriot28, LLC. Mr. Jarkesy was the subject of an Securities and Exchange Commission (“SEC”) enforcement action in 2013 after he allegedly violated federal-securities laws.[14] Mr. Jarkesy, who was ordered to pay a civil penalty by the SEC, appealed his decision all the way to the Supreme Court, which held the SEC’s wholly in-house adjudication of his civil penalties via an ALJ violated his Seventh Amendment right to a jury trial.[15] The Supreme Court’s decision has the potential to not only significantly limit the role of ALJs within the federal government as a mechanism for adjudicating thousands of cases outside of Article III courts but also severely limit agency enforcement power because of the over 200 statutes authorizing agencies to impose civil penalties for violations of statutory obligations.[16]

Congress, through the powers the Constitution preserved through Article III[17] and the Necessary and Proper Clause,[18] is uniquely positioned to remedy these issues. With its power to control the appellate jurisdiction of the judicial power of the United States, Congress should create a new set of lower-level Article III administrative law courts with the power to hear the cases that are currently evaluated by Article I ALJs. This would: (1) resolve various critiques about ALJs exercising judicial power without having gone through the proper Appointments Clause process, (2) promote judicial efficiency and expertise by allowing ALJs to retain their ability to resolve cases without increasing the caseload of District Courts, and (3) allow for the adjudication of various claims without violating the constitutional protections of the Seventh Amendment and Due Process Clause.

II. Administrative Law Judges

The APA provides that ALJs preside over issues requiring formal adjudication.[19] Formal adjudication resembles traditional Article III adjudication in its requirements for notice,[20] on-the- record hearing,[21] and issuance of a written decision.[22] Additionally, impartial individuals with the power to issue subpoenas,[23] rule on evidence,[24] and regulate the course of hearings to develop a factual record,[25] preside over both types of proceedings. ALJ decisions, however, are subject to de novo review by the agency, which can either reverse the ALJ’s decision or choose to adopt it.[26]

Once a decision is final, Article III courts can review agency decisions subject to several limits: statutes provide whether an action is within an agency’s discretion or whether judicial review is precluded altogether,[27] standing doctrines limit suits to parties injured by the agency action,[28] exhaustion requirements make final agency action a prerequisite to judicial review,[29] and standards of review provide the various circumstances where agency actions must be set aside.[30] Article III courts also traditionally applied Chevron USA, Inc. v. Natural Resources Defense Council, Inc. deference to agency interpretation of their authorizing statutes; however, the Loper Bright Enterprises v. Raimondo decision from this past term now precludes such deference to agency interpretation of statutes.[31]

ALJs and the administrative proceedings over which they preside provide significant benefits to the federal government. First, the thousands of matters that ALJs handle keep cases off federal district court dockets that otherwise would have had to be adjudicated by Article III judges. According to the Office of Personnel Management, in March 2017 there were nearly 1,931 ALJs in the federal government working across twenty-eight agencies,[32] with some scholars estimating they “decide more than two hundred and fifty thousand cases each year.”[33]  This helps manage the caseload of District Courts, who had 353,170 filings and 702,433 pending cases in 2023.[34] Additionally, ALJs develop important expertise on topics within their jurisdiction, which proponents argue means they are often better positioned to interpret ambiguous statutes and complex regulations than Article III courts.[35] ALJs go through a merit selection process by the Office of Personnel Management to ensure they are initially qualified,[36] and this expertise and familiarity with agency regulations had created the underpinning for Chevron deference from Article III courts. Second, ALJs often hear cases involving entitlements and protected property interests like licenses, permits, and government benefits and employment.[37] Because these interests are subject to certain due process protections such as notice,[38] a hearing,[39] and a purportedly unbiased decisionmaker,[40] ALJs are responsible for ensuring the substantive rights of those over who they preside. Third, formal adjudication by ALJs has created a body of decisions resembling common law which ensures that precedents are followed and similarly situated individuals have their claims adjudicated in a like manner.[41] Finally, ALJs have independence and are insulated within their agencies with respect to their decision-making process, which allows them to impartially adjudicate claims before them.[42]

Despite these benefits, ALJs have been subject to significant critiques because of their unique role within the federal regulatory system. Because the Supreme Court has repeatedly held ALJs are “inferior officers” within the meaning of the Appointments Clause,[43] scholars have argued “the manner in which some are currently selected is likely unconstitutional,” because many are appointed by non-department agency heads rather than through one of the constitutionally outlined Appointments Clause mechanisms.[44] Moreover, others have asserted the removal protections afforded to ALJs potentially improperly limit the President’s power to remove or supervise executive branch officers under Article II.[45] If Congress eliminated these removal protections to increase the President’s supervisory power over ALJs, it may come at the cost of Due Process interests over impartiality and fairness when ALJs exercise their quasi-judicial power because ALJs would potentially face removal for decisions that do not align with a given President’s policies.[46] Additionally, some have argued ALJ adjudication of cases where civil penalties are sought violates the Seventh Amendment[47]––the very same provision that curtailed ALJs’ authority to exercise judicial power over private rights of action.[48]

III. The Curious Case of George Jarkesy

Let’s return to Mr. Jarkesy, who was accused of violating antifraud provisions of the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940 after he allegedly made various fraudulent misrepresentations to investors in his hedge fund, Patriot28.[49] Under the Dodd-Frank Act, Congress granted the SEC the option to choose whether to adjudicate civil enforcement actions before either its ALJs or in Article III courts.[50] This ability to choose to adjudicate claims before either in-house ALJs or federal court is granted to other agencies, such as the Environmental Protection Agency and Consumer Financial Protection Bureau.[51] As was its prerogative, the SEC opted to adjudicate the manner in-house, where an ALJ held, and SEC Commissioner affirmed, that Mr. Jarkesy committed the alleged violations.[52] The SEC ordered Mr. Jarkesy to pay a $300,000 civil penalty, to disgorge $685,000 of his profits, and to cease and desist from further violations.[53]

Mr. Jarkesy appealed this decision to the Fifth Circuit, and in doing so, opted for constitutional arguments that attacked the ALJ regime as a whole.[54] He argued: (1) Congress violated the nondelegation doctrine by “failing to provide an intelligible principle by which the SEC would exercise [its] delegated power,” (2) the statutory removal restrictions on SEC ALJs violates Article II’s Take Care Clause, and (3) the SEC’s adjudication of civil penalties before an ALJ violated Mr. Jarkesy’s Seventh Amendment right to a jury trial.[55] The Fifth Circuit agreed with Mr. Jarkesy and entered a decision with potentially wide-ranging consequences for the administrative state.[56]

The Supreme Court affirmed the Fifth Circuit on only one of these grounds: that agencies cannot use ALJ’s to adjudicate civil enforcement penalties thus Mr. Jarkesy was entitled to a Seventh Amendment jury trial.[57] Chief Justice Roberts found three bases for this conclusion, (1) Congress’s choice of statutory language, (2) the similarities between common law fraud and claims against Mr. Jarkesy, and (3) the Court’s public rights jurisprudence.

First, the Chief Justice held that Congress “deliberately used ‘fraud’ and other common law terms of art” in the three acts under which Mr. Jarkesy was charged.[58] In using these terms, a link was created “between federal securities fraud and its common law ‘ancestor.’”[59] This close relationship, according to the Chief Justice, confirms the legal nature of the action, and therefore, Mr. Jarkesy’s entitlement to a Seventh Amendment trial.[60] Second, the Chief Justice held this trial right “is not limited to the ‘common-law forms of action recognized’ when the Seventh Amendment was ratified” but “includes statutory claims that are ‘legal in nature.’”[61] This meant the civil penalties were “a type of remedy at common law that could only be enforced in courts of law” and therefore legal in nature.[62] That the SEC sought a form of monetary relief designed specifically to punish Mr. Jarkesy meant he was entitled to a Seventh Amendment trial.[63] Finally, the Chief Justice held the “public rights” exception does not apply to cases where the government seeks civil penalties before an ALJ.[64] Under the public rights exception, certain “public rights” may be properly assigned to an agency to decide instead of an Article III court with a jury without violating the Seventh Amendment.[65] While the Chief Justice conceded the “Court’s opinions governing this exception have not always spoken in precise terms,” he held that the SEC’s action involves the “matter[ ] of private rather than public right,” which Congress cannot mandate an administrative tribunal to handle.[66]

Justice Sotomayor, joined by Justice Jackson and Justice Kagan, dissented from the majority opinion and took significant issue with the majority’s analysis of the public rights exception, calling it “plainly wrong.”[67] Justice Sotomayor outlined how, while the Court’s public rights jurisprudence was confusing “for cases involving wholly private disputes,”[68] it was long-settled government practice that public rights arise in cases between the government and an individual “subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.’”[69] In Justice Sotomayor’s view, this specifically included cases like Mr. Jarkesy’s: where the Congress “enact[ed] new statutory obligations [the Dodd-Frank Act], prescribe[d] consequences for the breach of those obligations [the civil penalties in question], and then empower[ed] federal agencies to adjudicate such violations and impose the appropriate penalty [through SEC ALJs].”[70] Such regulatory regimes where the Congress could assign the adjudication of civil penalties for statutory violations to ALJs was “so settled that it bec[a]me an undisputable reality of how ‘our Government has actually worked.”[71] Given that the claims against Mr. Jarkesy were now considered private rights rather than public rights, Justice Sotomayor asserted the majority’s holding “pulls a rug out from under Congress without even acknowledging that its decision upends over two centuries of settled Government practice.”[72]

IV. Administrative Fallout

While the full scope of Jarkesy’s consequences remain to be seen, it has the potential to significantly undermine the powers of administrative agencies to regulate the general public depending on “whether courts apply its… framework expansively beyond the narrow securities antifraud context.”[73] Read narrowly, Jarkesy only strikes down the SEC’s ability to adjudicate penalties with common law analogues like fraud before ALJs as authorized in Dodd-Frank.[74] Read broadly, however, there’s no principle limiting the ruling to the peculiarities of the SEC’s civil penalty regime, meaning this decision can serve as the basis to challenge the penalty regimes of other agencies.[75]

Justice Sotomayor’s dissent lays bare the potential impact of a broad ruling. She notes Congress has authorized more than two dozen agencies to impose civil penalties before ALJs.[76] And while some agencies like the EPA and SEC have been authorized to pursue civil penalties before both ALJs and Article III judges, the same cannot be said for agencies like the Federal Energy Regulatory Commission and Department of Agriculture, which have only been authorized to pursue agency enforcement proceedings.[77] Those agencies would become toothless to enforce federal law and regulations unless Congress passes a new authorizing statute.[78]

Some effects of Jarkesy are already being felt. Challenges to other agency civil enforcement schemes citing Jarkesy have already begun against the Federal Deposit Insurance Corporation,[79] Department of Labor,[80] and the Financial Industry Regulatory Authority.[81] And in September, the SEC asked to dismiss its active misconduct proceedings before its ALJs against accountants, which experts believe is in response to the Jarkesy decision.[82]

V. A Proposed Solution

Congress has the broad power under Article III to control the appellate jurisdiction of the Supreme Court of the United States,[83] and should use this power to expand the federal judiciary and convert certain ALJs from Article I to Article III judges. While various proposals have been advanced regarding the creation of Article III administrative tribunals,[84] Congress should convert the various ALJs that hear the types of cases specifically implicated by Jarkesy to trial-level Article III judges whose exclusive jurisdiction would be issues of administrative law siloed to a specific agency.[85] For example, Department of Labor ALJs would be converted to judges at a newly created Court of Labor Claims, and SEC ALJs would be converted to judges at a newly created Court of Securities Claims. Importantly, while Congress has traditionally opted to organize the district courts and appellate circuits geographically, precedent exists for Congressional court creativity through statutory schemes that provide for the filing of cases in specifically created district courts, [86] courts of appeals with specialized jurisdiction,[87] and oversight of Bankruptcy and Magistrate Judges performing judicial functions by Article III courts.[88]

This creation would accomplish several goals. First, the conversion of ALJs to Article III judges would resolve constitutional critiques about the exercise of their power. This would alleviate concerns about separation of powers because they would be insulated from agency review and executive supervision as Article III adjudicators. Importantly, the natural set-up of Article III courts would not only ensure due process requirements are met but also eliminate due process concerns associated with ALJs hearing cases involving individual rights. To become formal Article III adjudicators, they would have to go through the proper Appointment Clause process through Senate confirmation, thus resolving critiques about their appointment process.[89] As Article III adjudicators, they would be then allowed to exercise “essential attributes of judicial power” and would be able to hear not only public rights cases but also private rights cases and others implicating the Seventh Amendment that ALJs are now forbidden from hearing. Second, by converting ALJs to Article III judges, those adjudicating administrative law cases in their fields would be able to retain their expertise. While there are benefits to Article III judges serving as generalists, the technical issues implicated by questions set before agencies are best heard by those who have a deep understanding of the statutory schemes and regulations governing the agency.[90] Third, in creating new Article III judges, traditional district and appellate courts would continue to receive an important mechanism for keeping cases off of their already overcrowded dockets. Fourth, through the creation of these administrative courts, Congress would be proactive rather than reactive to case law that will continue to diminish the role of ALJs.

Under this proposal, any decision from these administrative trial courts would then be appealed to the D.C. Circuit, which would exercise appellate review using the same deferential standards of review outlined in the APA in 5 U.S.C. §§ 701–06. The D.C. Circuit makes sense as the appellate court for the newly created administrative courts for several reasons. First, the proximity of various agencies to Washington, D.C., would allow for agencies to easily litigate appeals of administrative cases. Second, the D.C. Circuit has a caseload that is smaller than that of other appeals courts and already has significant expertise in administrative law, which would alleviate the need to create a separate appeals court for the newly created courts.[91] Finally, by making the D.C. Circuit the exclusive court of appeals for administrative cases, the Circuit would gain nationwide appellate jurisdiction for administrative matters much in the same way that the Court of Appeals for the Federal Circuit currently has over matters within its jurisdiction.[92] This would mean no circuit splits on issues of administrative law, which would provide clear parameters for agencies and prevent dueling injunctions from district courts over various agencies. Additionally, the requiring of cases to be filed in the appropriate lower-level district with exclusive jurisdiction over agency matters and would preclude conflicting injunctions on agencies.[93]

As proposals to expand the judiciary to account for increased caseloads are advanced and considered,[94] Congress must act to protect both ALJs and agencies. The creation of new Article III ALJs would be beneficial to agencies, the public, and the federal government.

[1] Administrative Law Judge (ALJ), Legal Information Institute, https://www.law.cornell.edu/wex/administrative_law_judge_(alj) (last visited Oct. 25, 2024).

[2] Ronnie A. Yoder, The Role of the Administrative Law Judge, 22 J. Nat’l Ass’n Admin. L. Judiciary 321, 324 (2002) (quoting Butz v. Economou, 438 U.S. 478 (1978)).

[3] Kent Barnett, Resolving the ALJ Quandary, 66 Vand. L. Rev. 797, 799 (2013).

[4] See, e.g., 7 U.S.C. §§ 499c(a), 499m (allowing the Department of Agriculture to seek administrative enforcement before an ALJ for civil penalties for violating the Perishable Agriculture Commodities Act); 7 U.S.C. § 136l(a)(1) (requiring the EPA to seek administrative enforcement before an ALJ for civil penalties for violating the Federal Insecticide, Fungicide, and Rodenticide Act).

[5] Barnett, supra note 3, at 799.

[6] See id.

[7] See id.

[8] See Thaya Brook Knight et. al., Ending the Reign of the Administrative Law Judge, Cato Institute (Mar. 10, 2017, 1:13 PM), https://www.cato.org/blog/ending-reign-administrative-law-judge.

[9] See id.

[10] Ilya Shapiro, Lucia v. SEC: Reining in the Fourth Branch, Cato Institute (Apr. 12, 2018), https://www.cato.org/commentary/lucia-v-sec-reining-fourth-branch.

[11] Todd Phillips & Connor Raso, Debates over agency judges should focus on functions, not job titles, Brookings (Nov. 17, 2020), https://www.brookings.edu/articles/debates-over-agency-judges-should-focus-on-functions-not-job-titles/.

[12] Daniel Whalen, The Collision of Administrative Law and Civil Liberties, New Civil Liberties Alliance (July 29, 2022), https://nclalegal.org/the-collision-of-administrative-law-and-civil-liberties/.

[13] See, e.g., Declan Harty, Josh Sisco, and Josh Gerstein, The campaign to gut Washinton’s power over corporate America, Politico (May 22, 2024, 5:00 AM), https://www.politico.com/news/2024/05/21/supreme-court-jarkesy-administrative-state-00158948; Devon Ombres, The Supreme Court’s Assault on Government Could Make the Far-Right’s Dreams Come True, Center for American Progress (Feb. 15, 2024), https://www.americanprogress.org/article/the-supreme-courts-assault-on-government-could-make-the-far-rights-dreams-come-true/.

[14] See Securities and Exchange Commission v. Jarkesy, 144 S.Ct. 2117, 2124 (2024).

[15] See id. at 2126–27.

[16] See id. at 2155 (Sotomayor, J., dissenting).

[17] U.S. Const., art. III, § 2, cl. 2 (“the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”).

[18] U.S. Const., art. I, § 8, cl. 18 (“The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”).

[19] See 5 U.S.C. §§ 554, 556­–57; see also Barnett, supra note 3, at 799 n.4 (noting ALJs preside over formal rulemakings as well but formal rulemaking is extremely rare and extremely impractical).

[20] See 5 U.S.C. § 554(b).

[21] See id. §§ 554(a), 556(d)–(e).

[22] See id. § 557(c).

[23] See id. § 556(c)(2); but see Nat’l Lab. Rels. Bd. v. Interbake Foods, LLC, 637 F.3d 492, 495 (4th Cir. 2011) (holding that while ALJs can issue subpoenas in the course of an administrative hearing, they can only be enforced by Art. III courts).

[24] See 5 U.S.C. § 556(c)(3).

[25] See id. § 556(c)(5); Bethlehem Steel Co. v. Nat’l Lab. Rels. Bd., 120 F.2d 641, 652 (D.C. Cir. 1941) (“It is the function of an examiner, just as it is the recognized function of a trial judge, to see that facts are clearly and fully developed. He is not required to sit idly by and permit a confused or meaningless record to be made.”)

[26] See 5 U.S.C. § 557(b).

[27] See id. § 701(a).

[28] See id. § 702.

[29] See id. § 704.

[30] See id. § 706.

[31] Compare Chevron, U.S.A., Inc. v. Nat. Res. Def. Couns., 467 U.S. 837, 842–43 (1984) (Courts ask [1] “whether Congress has directly spoken to the precise question at issue” and if not and the statute is ambiguous then [2] “whether the agency’s [interpretation] is based on a permissible construction of the statute.”); with Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244, 2273 (2024) (“Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority….”).

[32] Administrative Law Judges, ALJs by Agency, U.S. Off. of Pers. Mgmt., https://www.opm.gov/services-for-agencies/administrative-law-judges/#url=By-Agency (last visited Mar. 5, 2024).

[33] See Barnett, supra note 3, at 799.

[34] See Federal Judicial Caseload Statistics 2023, United States Courts, https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2023 (last visited Dec. 1, 2024).

[35] See Adam Liptak, Conservative Justices Appear Skeptical of Agencies’ Regulatory Power, N.Y. Times (Jan. 17, 2024), https://www.nytimes.com/2024/01/17/us/supreme-court-chevron-case.html.

[36] See Barnett, supra note 3, at 804.

[37] See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571–72, 576 (1972); id. at 571 n.8 (citing Goldberg v. Kelly, 397 U.S. 254 (1970)).

[38] See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950) (“Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”).

[39] See id.

[40] See Withrow v. Larkin, 421 U.S. 35, 47 (1975) (“The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”).

[41] See Robert L. Glicksman & Richard E. Levy, Administrative Law: Agency Action in Legal Context 523 (Saul Levmore et al. eds., 3d ed. 2020).

[42] See Barnett, supra note 3, at 806–08.

[43] See Lucia v. SEC, 585 U.S. 237, 241 (2018) (citing Freytag v. Comm’r, 501 U.S. 868 (1991)) (holding that ALJs qualify as “officers”).

[44] See Barnett, supra note 3, at 800.

[45] See id. at 800–01; see also Jarkesy v. Securities and Exchange Commission, 34 F.4th 446, 449 (5th Cir. 2022) (holding “statutory removal restrictions on SEC ALJs violate the Take Care Clause of Art. II”), aff’d, 144 S. Ct. 2117 (2024).

[46] See Barnett, supra note 3, at 816–20.

[47] See Brief for The Cato Institute as Amici Curiae Supporting Respondents at 21–25, Securities and Exchange Commission v. Jarkesy, 144 S. Ct. 2117 (2024) (No. 22-859); David McGarry, Do You Still Have the Right to a Jury Trial?, Reason (Nov. 28, 2023, 11:46 AM), https://reason.com/2023/11/28/do-you-still-have-the-right-to-a-jury-trial/.

[48] See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 34 (1989) (“Although the Seventh Amendment does not prohibit Congress from assigning resolution of a statutory claim that is legal in nature to a non-Article III tribunal that does not use a jury as a factfinder so long as the claim asserts a ‘public right,’ Congress lacks the power to strip parties who are contesting matters of private right of their constitutional right to a jury trial.”); Securities and Exchange Commission v. Jarkesy, 144 S.Ct. 2117, 2132 (2024).

[49] See Securities and Exchange Commission v. Jarkesy, 144 S. Ct. 2117, 2126–27 (2024).

[50] See id. at 2126 (citing H.R. Rep. No. 111-687 (2010)).

[51] See id. at 2174 (Sotomayor, J., dissenting).

[52] See id. at 2127.

[53] See Jarkesy v. Securities and Exchange Commission, 34 F.4th 446, 450 (5th Cir. 2022), aff’d 114 S. Ct. 2117 (2024).

[54] See id.

[55] See id.

[56] See id. at 451.

[57] See Securities and Exchange Commission v. Jarkesy, 144 S. Ct. 2117, 2120 (2024).

[58] Id. at 2130.

[59] Id.

[60] Id. at 2130–31.

[61] Id. at 2128 (citations omitted).

[62] Id. at 2120.

[63] See id. at 2129.

[64] See id. at 2120.

[65] See id.

[66] Id. at 2133, 2136.

[67] Id. at 2155 (Sotomayor, J., dissenting).

[68] Id. at 2158 (Sotomayor, J., dissenting).

[69] Id. at 2158–59 (Sotomayor, J., dissenting).

[70] Id. at 2159 (Sotomayor, J., dissenting).

[71] Id. at 2163–64 (Sotomayor, J., dissenting) (citations omitted).

[72] Id. at 2173 (Sotomayor, J., dissenting).

[73] James Fallows Tierney, Jarkesy’s First-Order Consequences, Yale. J. Reg. (July 3, 2024), https://www.yalejreg.com/nc/jarkesys-first-order-consequences-james-fallows-tierney/.

[74] See id.

[75] See Christopher J. Walker, What SEC v. Jarkesy Means for the Future of Agency Adjudication, Yale. J. Reg. (June 27, 2024), https://www.yalejreg.com/nc/what-sec-v-jarkesy-means-for-the-future-of-agency-adjudication/.

[76] See Jarkesy, 144 S. Ct. at 2173–74 (Sotomayor, J., dissenting).

[77] Id. at 2174.

[78] Id.

[79] See John L. Culhane, Jr., Defendant Challenges FDIC Enforcement Proceeding, Citing Jarkesy, Consumer Finance Monitor (Sept. 3, 2024), https://www.consumerfinancemonitor.com/2024/09/03/defendant-challenges-fdic-enforcement-proceeding-citing-jarkesy/.

[80] See Alison Frankel, Comcast sues US Labor Department to shut down whistleblower case, citing US Supreme Court, Reuters (Aug. 12, 2024, 4:28 PM), https://www.reuters.com/legal/government/column-comcast-sues-us-labor-department-shut-down-whistleblower-case-citing-us-2024-08-12/.

[81] See Alison Frankel, FINRA dodges broker’s post-Jarkesy challenge to disciplinary hearing, Reuters (Sept. 5, 2024, 4:47 PM), https://www.reuters.com/legal/government/finra-dodges-brokers-post-jarkesy-challenge-disciplinary-hearing-2024-09-05/.

[82] See Douglas Gillison, US SEC abandons in-house malpractice suits after Supreme Court ruling, Reuters (Sept. 5, 2024, 11:10 AM), https://www.reuters.com/legal/us-sec-abandons-in-house-malpractice-suits-after-supreme-court-ruling-2024-09-05/.

[83] U.S. Const. art. III, § 1.

[84] See Memorandum from Steven G. Calabresi & Shams Hirji on Proposed Judgeship Bill to Senate & House of Representatives 21 (Nov. 7, 2017), available at https://thinkprogress.org/wp-content/uploads/2017/11/calabresi-court-packing-memo.pdf (this piece argues for an expansion of the federal judiciary as a whole, among which is the conversion of some ALJs to Art. III judges, however this proposal differs from that one).

[85] It is worth noting that while most ALJs in the federal government are located within Social Security Administration, a narrow reading of Jarkesy would likely find they would not be impacted by the Supreme Court’s holding and not included in this proposal. See U.S. Off. of Pers. Mgmt., supra note 32.

[86] See 28 U.S.C. § 1491 (establishing the jurisdiction of the Court of Federal Claims).

[87] See 28 U.S.C. § 1295 (establishing the jurisdiction of the Court of Appeals for the Federal Circuit).

[88] See 28 U.S.C. § 1334 (establishing the jurisdiction of district courts over bankruptcy cases); 28 U.S.C. § 157(a) (establishing the procedure by which district court judge can refer bankruptcy proceedings to bankruptcy judges for that district); 28 U.S.C. § 636 (establishing the jurisdiction and powers of federal magistrate judges).

[89] It is worth noting that this proposal would necessitate the Senate to confirm each of these newly appointed Art. III judges. Given the number of judges in question, this would lead to significant work for the Senate Judiciary Committee, who would be tasked with these confirmations. Whether the Senate Judiciary Committee would be able to handle the influx of required confirmations is outside of the scope of this proposal.

[90] One such example comes from an environmental case the Supreme Court heard last term, where Justice Gorsuch’s original opinion confused “nitrous oxide” (laughing gas) with the “nitrogen oxide” which was the actual pollutant at issue in the case. The Supreme Court was forced to issue a corrected opinion as a result. See Alison Durkee, Supreme Court Corrects EPA Opinion After Gorsuch Confuses Laughing Gas With Air Pollutant, Forbes (Jun. 28, 2024, 5:32 AM), https://www.forbes.com/sites/alisondurkee/2024/06/28/supreme-court-corrects-epa-opinion-after-gorsuch-confuses-laughing-gas-with-air-pollutant/.

[91] See Eric M. Fraser et al., The Jurisdiction of the D.C. Circuit, 23 Cornell J. L. Pub. Pol’y 131, 137–38 (2013); cf. U.S. Courts, Table B––U.S. Courts of Appeals Statistical Tables For The Federal Judiciary (Dec. 31, 2023), https://www.uscourts.gov/statistics/table/b/statistical-tables-federal-judiciary/2023/12/31.

[92] See e.g., 28 U.S.C. § 1295 (establishing nationwide jurisdiction for certain appeals).

[93] See Developments in the Law–District Court Reform: Nationwide Injunctions, 137 Harv. L. Rev. 1701, 1709 (2024) (noting that scholars have warned about the dangers of conflicting injunctions).

[94] See Maggie Jo Buchanan & Stephanie Wylie, It Is Past Time for Congress To Expand the Lower Courts, Center for American Progress, (July 27, 2021), https://www.americanprogress.org/article/past-time-congress-expand-lower-courts; Courtney Bublé, Biden Vetoes Bill To Add New Judgeships, Law360 (Dec. 23, 2024, 9:58 PM), https://www.law360.com/appellate/articles/2273789?nl_pk=05bc5523-7925-413c-b250-f0626c1ed059&utm_source=newsletter&utm_medium=email&utm_campaign=appellate&utm_content=2273789&read_main=1&nlsidx=0&nlaidx=0.