Last year, a federal appeals court dominated by Trump appointees and MAGA sympathizers ruled that the system the Securities and Exchange Commission (SEC) uses to protect investors from fraud is unconstitutional — and that it is unconstitutional in three ways. This case, known as SEC v. Jarkesy, will be heard by the Supreme Court on November 29.
To be clear, we are talking about a federal agency that has existed since the Roosevelt administration, and whose governing statutes haven’t changed in any relevant way for more than a dozen years. Nevertheless, an especially right-wing panel of the United States Court of Appeals for the Fifth Circuit purported to find three entirely different constitutional flaws that somehow no one else has ever noticed before.
The Fifth Circuit’s decision in Jarkesy isn’t particularly surprising. Indeed, it’s typical of a court that routinely hands down dubiously reasoned decisions that attempt to sabotage core functions of the federal government. We are less than two months into the Supreme Court’s current term, and it’s already heard two similar cases arising out of the Fifth Circuit — one of which declared a different agency, the Consumer Financial Protection Bureau, unconstitutional, and another which held that domestic abusers have a constitutional right to own a gun — neither of which the Supreme Court seems likely to affirm.