The Supreme Court is being used by God, striking down the right to abortion and affirmative action. Is the administrative state next?

From The Epoch Times. The Supreme Court may take steps to roll back the administrative state in its approaching term that begins next month, according to lawyers who frequently appear before the nation’s highest court.

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The lawyers were appearing at a Sept. 20 event hosted by The Heritage Foundation think tank.

Attorney Paul Clement of the law firm of Clement and Murphy in Washington participated. …

Also participating was attorney Lisa Blatt, a partner at the law firm of Williams and Connolly in Washington.

The court agreed on June 30 to hear Securities and Exchange Commission (SEC) v. Jarkesy (court file 22-859) at some point in the upcoming term.

The SEC, an independent federal agency, enforces federal securities laws administratively or by filing civil actions in court.

George Jarkesy and his advisory firm, Patriot28, were sued in federal court in the District of Columbia in 2013 for infringing securities laws in managing two hedge funds. Mr. Jarkesy countersued, arguing that the structure of the commission ran afoul of the U.S. Constitution.

The lower court found for the SEC, which continued the proceedings and assigned the case to an administrative law judge who confirmed the violations. The SEC reviewed and ratified the decision and ordered the parties to pay $300,000 in civil penalties.

A divided U.S. Court of Appeals for the 5th Circuit found that the two levels of removal protections applying to administrative law judges unconstitutionally shielded them from presidential oversight. The court also held that SEC proceedings infringed the Seventh Amendment right to a jury trial and that Congress had unconstitutionally delegated its lawmaking powers to the commission, according to a Ballotpedia summary.

‘Rethinking These Fundamental Questions’

Ms. Blatt said, “We’re at a place in our country, and I think with the court, where they’re rethinking these fundamental questions about the administrative state, and how people’s liberty interests are being taken away by bureaucrats.” ..

The 5th Circuit found the SEC’s system was unconstitutional “because Congress could not have, or should not have, delegated to the SEC the decision to proceed either internally by adjudication or go to court.”

With the Federal Trade Commission and many other agencies, “you can either do it in-house or go to court,” she said.

“Well, guess what you would do if you were an agency. I would do it in-house because you’re going to win. You get to be the judge, jury, and the executioner. And it is very unfair to have that.” …

‘Chevron Deference’

The case challenges “Chevron deference,” a bureaucracy-empowering legal doctrine that critics say has distorted the U.S. system of government for decades at the expense of everyday citizens.

The doctrine, which arose out of Chevron v. NRDC (1984), holds that an executive agency’s interpretation of a statute is entitled to deference unless Congress has explicitly said otherwise. …

“I don’t want to say that Chevron is responsible for all the ills of the modern administrative state, just most of them,” Mr. Clement said. …

16th Amendment

Mr. Clement said the tax case of Moore v. United States (court file 22-800), which has not yet been scheduled, is “the great 16th Amendment case of the court’s term.”

Charles and Kathleen Moore, a married Washington state couple, are challenging a wealth tax that was levied on capital gains they never received.

The mandatory repatriation tax, also known as the Section 965 transition tax, was part of the Tax Cuts and Jobs Act passed by the Republican-controlled Congress in 2017 and signed into law by President Donald Trump in December 2017.

The provision taxes U.S. citizens on certain accumulated foreign earnings of foreign corporations going back 30 years, even if the earnings haven’t been distributed.

This “pretty obscure statute” addressed a “concern that there were certain taxpayers who were leaving lots and lots of money in foreign companies, and they weren’t repatriated to the United States where it could be taxed. And so they were building up lots of wealth in a way that wasn’t giving any sort of benefit to the public fisc,” Mr. Clement said.

Before the 16th Amendment was ratified in 1913, “there were some real limits on how big the federal government could get because it was seriously revenue-constrained,” he said.

“The 16th Amendment just blew the doors off of that and paved the way for the income tax, which is now why we have a federal government of this huge size that we have. …

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(Excerpt from The Epoch Times. Photo Credit: Adam Szuscik on Unsplash)