Recovering the right to trial by jury

Thomas Jefferson's list of grievances against King George III justifying America's Declaration of Independence included a complaint that "[h]e has erected a multitude of New Offices and sent hither swarms of Officers to harass our people, and eat out their substance." If Jefferson thought his countrymen faced a swarm in 1776, just imagine what he would make of the multitude of federal agencies that plague our lives 250 years later.

Our founding charter sought to prevent such royal abuses of power and deprivations of liberty from recurring by deliberately separating the major powers of government across three distinct branches, with the legislative power confined to Congress, the executive power vested in the president, and the judicial power reserved to the judiciary. So, to punish someone, the legislature must prohibit the conduct, the executive must agree to prosecute, and a jury must find facts and decide guilt. All three branches have to concur before taking someone's liberty or property.

Heedless of the Constitution, Woodrow Wilson, both before and during his presidency, encouraged America to follow the European model instead--where Alexis de Tocqueville said that "[t]he government is ... escaping more each day from the obligation to have its will and its rights sanctioned by another power. Unable to do without judges, it wishes at least to choose its judges itself and to keep them always in hand[.]" Soon, Progressive Era agencies recombined the legislative, executive and judicial powers of government. These new agencies could write rules, apply them, and enforce their compliance inside lopsided agency tribunals--all without juries. Suddenly, only one or two branches were needed to deprive people of liberty (by delicensing their livelihood) or property.

The degradation of jury-trial rights began in earnest with the U.S. Supreme Court's Crowell v. Benson admiralty case in 1932, which upheld the federal government's authority to adjudicate its enforcement actions in administrative tribunals rather than Article III courts. Then, in 1977, the Supreme Court extended Crowell to uphold juryless administrative hearings imposing civil penalties. Under the so-called public rights doctrine advanced in Atlas Roofing v. Occupational Safety and Health Review Commission, Congress may assign to administrative agencies the adjudication of any violations of new statutory duties imposed by Congress. Worse yet, the scope of public rights was said to broadly include "cases in which the government sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact." Agencies could now enforce nearly every regulatory prohibition without a jury.

But the Seventh Amendment does not exempt federal agencies from proving regulatory cases to juries: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

The Atlas Roofing court decided OSHA's administrative claims did not require juries because they were civil violations "unknown to the common law" and required factfinding by professionals "with special competence in the relevant field." But when the whole impetus for juries was as a bulwark against government power, it takes odd logic to largely confine juries to cases between private parties. The Supreme Court lost the plot.

Allowing proliferating federal agencies to try regulatory offenses in house opened the gates to a flood of administrative enforcement proceedings. Even when a defendant finally reaches a federal court of appeals, an administrative law judge (ALJ) has already stuck the defendant with a biased "factual" administrative record--without a jury and without the benefit of the Federal Rules of Evidence or the Federal Rules of Civil Procedure. This is how agencies trample Americans' civil liberties, denying them due process of law every day.

Can anything be done? Yes. Fortunately, the Supreme Court's recent decisions suggest renewed appreciation for jury trials as a mechanism by which free people govern themselves.

In 2023's Axon/Cochran case, the Court held unanimously that defendants need not go all the way through agency proceedings before raising structural constitutional objections in federal court. Then in 2024's SEC v. Jarkesy case, the Court cut back the public-rights doctrine, holding that a jury-trial right attaches to agency enforcement proceedings where civil penalties are issued. Importantly, it also held that such cases belong in federal courts.

Jarkesy correctly noted that the Constitution vests the judicial power of the United States in Article III courts. Congress does not possess that judicial power, so it cannot delegate judicial power it does not have. Nor can it transfer judicial power that belongs to Article III judges to be wielded instead by ALJs at Article II agencies. The implications of this insight are powerful. Anytime the "judicial power of the United States" is involved, neither Congress nor agencies can force adjudications in house.

The danger after 250 years is not a king, but an imperious bureaucracy empowered to make rules, prosecute violations and adjudicate cases internally. Wresting self-government away from "swarms of Officers" begins with requiring agencies to prove enforcement cases to juries. When ordinary citizen-jurors stand between the government and the governed, agencies will not be able to trample Americans' rights so easily. The Supreme Court's newfound respect for jury-trial rights has not dismantled the administrative state, but it has begun to restore constitutional safeguards. Once again, it should take all three branches acting in concert to take away someone's liberty or property.

Mark Chenoweth is president of the New Civil Liberties Alliance.