[paxys]

Sets an interesting precedent for literally every other federal body that "acts as prosecutor and judge" while skipping the judicial system. Should everyone fighting an immigration or deportation case be able to request a jury trial? What about the military? Labor violations? EPA fines?

[linkjuice4all]

While I dislike poorly written laws (including those that work around some failing of our current "state" of government) and judges lacking accountability - this seems to be in the same league as the EPA Regulator Case[0] that's sitting at the Supreme Court right now.

The end-goal doesn't appear to be justice for the aggrieved party but more so the elimination of agency-issued oversight. The jurisprudence seems to follow the idea that if the legislator didn't explicitly grant or disallow an agency to do something or regulate something then that agency has absolutely no power at all to do it.

On a basic level this seems to make sense but the practical application of this would mean that legislators would need to explicitly pass legislation anytime a regulatory body needs to address a specific issue or regulate some behavior (that presumably they already had the authority to regulate by the very nature of the agency being created).

This _may_ be a regular case that naturally found its way into the legal system - but the 5th circuit has the history that it does and the targets of these lawsuits (SEC, EPA, etc) typically have deep-pocketed foes.

[0] https://www.npr.org/2022/02/28/1082934438/supreme-court-to-h...

[xyzzyz]

> On a basic level this seems to make sense but the practical application of this would mean that legislators would need to explicitly pass legislation anytime a regulatory body needs to address a specific issue or regulate some behavior

Yeah, can you imagine the horror of making the congressmen actually do their job and pass the laws, instead of delegating all their authority to unelected, nameless, and effectively unaccountable bureaucrats, so that they have more time to spend on fundraising and campaigning? This will literally grind US into halt, and bring it to similar stagnation and stasis it was under before FDR.

[_moof]

> Yeah, can you imagine the horror of making the congressmen actually do their job and pass the laws, instead of delegating all their authority to unelected, nameless, and effectively unaccountable bureaucrats

As someone subject to a significant body of federal regulation on a technical subject, I would absolutely prefer to have those rules in the hands of the level-headed experts who currently control them rather than a bunch of loud-mouthed politicians - politicians who would still have to gun for votes every N years, and wouldn't bat an eye at doing so by turning technical rules they don't understand into culture war fodder. No thanks.

[vkou]

> Yeah, can you imagine the horror of making the congressmen actually do their job and pass the laws, instead of delegating all their authority to unelected, nameless, and effectively unaccountable bureaucrats

1. Those bureaucrats are appointed by the President, whom you vote for, and by Congress, whom you vote for, and may be fired by the former. If you don't like what the executive branch of the government looks like, I have great news for you - you elect your chief executive! And people you elect appoint his immediate underlings!

2. In 2022, I wouldn't hold my breath for congress to pass any laws. Half of congress governs under the explicit mandate that the people paying for their campaign should be above any law, and the other half governs under an implicit mandate to the same effect.

[xyzzyz]

> Those bureaucrats are appointed by the President, whom you vote for, and by Congress, whom you vote for, and may be fired by the former.

I wish this was the case, but it is not: only a minuscule fraction of government bureaucrats is politically appointed. The people actually drafting the million pages of administrative regulations are overwhelmingly career bureaucrats, who are effectively unfireable.

> 2. In 2022, I wouldn't hold my breath for congress to pass any laws

The Congress does pass some laws, for things it cares about and where there is a broad agreement as to what the law should be. If the elected representative cannot get enough votes to pass a law, it most likely means that the law is not that important, or that there is no agreement on what it should be.

[vkou]

> The people actually drafting the million pages of administrative regulations are overwhelmingly career bureaucrats, who are effectively unfireable.

They report to the appointed heads of these agencies, who both sign off on their work, and have the power to either fire them, or reassign them, when they refuse to draft the regulations they are told to draft.

The reason they don't tend to get fired, is because they tend to do what they are told.

[sofixa]

> If the elected representative cannot get enough votes to pass a law, it most likely means that the law is not that important, or that there is no agreement on what it should be.

I'm not even in the US and i know that's quite simply untrue. Almost every single issue gets split among party lines, regardless of its merits. Abortions, vaccinations, climate change combatting are supported by the majority of the population, yet no law on either can really be passed due to arcane rules and the refusal of one party to do anything that might benefit the other ( which is more interested in appearing right and not rocking the boat than actually doing anything).

You people need a revolution ( of the head chopping kind, or at least prison/exile) and a complete overhaul of your broken political system. There's no excuse to stick with the first past the post system, gerrymandered districts, voter disenfranchisement, electoral college and the pure temerity around it ( a candidate gets 5k votes more than the other in a state? All electoral votes from that state go to them! ?????) besides the "sanctity" of the current status quo your current political establishment espouses.

[xyzzyz]

> Abortions, vaccinations, climate change combatting are supported by the majority of the population, yet no law on either can really be passed due to arcane rules and the refusal of one party to do anything that might benefit the other

This is an extremely simplistic, if not outright naive take. Majority might be for “combatting climate change”, sure, but when it comes to actual methods to do that, you’ll find that there is hardly a broad agreement as to what exactly should be done about it.

For example, I support carbon tax, but I’m against directly subsidizing solar/wind energy projects (as we do now). You’ll also find plenty of people who support both of these measures, and those who support only subsidies, but not direct carbon tax. What to do about it?

The current approach seems to be that the Congress, instead of talking it among themselves, making deals and reaching majority to pass a bill, just delegates the job away to bureaucrats in federal agency. As a result, in so many aspects of life, we are being ruled by unelected, unaccountable, nameless bureaucrats, who proclaim “rules” that no majority would ever support. What’s the point of democracy again?

There is, of course, another solution to this, that works much better in practice: getting federal government out of all of this, and leave these things to states, exactly as the authors of the system intended. You’ll observe that the states have much less troubles passing bills about protecting or prohibiting abortion, for example. Why must everything be ruled by federal government, which was never intended to be doing that?

[remarkEon]

Your first point is a little misleading. There's a portion of the administrative state that is filled via executive appointment, yes, however the vast majority are not. There's several hundred thousand semi-permanent positions that are held by career civil servants.

[peyton]

The President cannot fire arbitrary federal employees.

[vkou]

Correct, just like it's correct to say that the president, and his appointees can set the agendas of the executive agencies that they run.

[PeterisP]

> Should everyone fighting an immigration or deportation case be able to request a jury trial?

Not necessarily - this judgement is about assigning a punishment for a violation, which would generally require a trial; but immigration courts usually decide cases where whatever they judge is not a punishment but rather granting or denying a privilege, so their decision is legally fundamentally different even if it results in a deportation.

[djbusby]

Doesn't US military have their own code of justice and court system?

[rootusrootus]

Sure, but this is about constraints by the Constitution, and military members do not give up their Constitutional protections when they enlist.

[ceejayoz]

The UCMJ forbids military members from "contemptuous speech" against the President and others in the chain of command. They may have some Constitutional protections, but they're hardly identical to those of civilians.

[nonameiguess]

Yes, they do. You absolutely give up freedom of speech and any rights of unreasonable search and seizure when you enlist. You don't give up every right, though. You still get the option of a jury trial whenever you want one. A commander's ability to levy administrative punishment relies on you opting in. You always have the option to seek court martial instead, the issue being they can levy much more severe punishments.

[rootusrootus]

Military members still have freedom of speech rights. More tightly regulated in some instances than civilians, but the right isn't taken away. Even as a civilian there are restrictions on your freedom of speech.

Similar for the fourth amendment. There are exceptions for civilians, and a different set of exceptions for military members, based on government need.

The Constitution applies to all US citizens, military or not.

[YuriNiyazov]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;

[colinmhayes]

> in the time of war

So are military courts going to close down since we’ve now ended the Afghanistan war? Or is that comma before “militia” going to mean that the time of war phrase is on for people who in a militia?

[gpm]

> or public danger;

Whether or not we're in a time of public danger is definitely up for debate, but you can't just leave off the second condition in an or statement and pretend it doesn't exist when trying to claim the statement is false.

[colinmhayes]

Yea I’m on mobile so didn’t want to deal with full quote, it I assumed public danger meant like martial law. Do you know of any precedent on that part?

[gpm]

> Or is that comma before “militia” going to mean that the time of war phrase is on for people who in a militia?

Findlaw (usually reasonably accurate) claims that is the case

> The protection of indictment by grand jury extends to all persons except those serving in the armed forces. All persons in the regular armed forces are subject to court martial rather than grand jury indictment or trial by jury.33 The exception’s limiting words when in actual service in time of war or public danger apply only to members of the militia, not to members of the regular armed forces.

https://constitution.findlaw.com/amendment5/annotation01.htm...

[UncleEntity]

Pretty sure it just means you can’t summarily execute a subordinate during peacetime.

During wartime disobeying a direct order is a serious offense (probably one of the most ‘infamous’ of offenses) but during peacetime you get to have a trial and more than likely not be shot.

[krapp]

The United States is always at war, if not elsewhere, then with itself and its own principles.

[rockemsockem]

Don't they? I was very much under the impression that they did.

[torstenvl]

No. They absolutely do not.

The closest thing that's true is this: Constitutional rights are always weighed against some government interest, and there's a lot of deference to the military with regard to government interest. So there may be things on the margins which are unconstitutional in every or nearly every civilian case, but are constitutional in the context of the government's interest in national defense.

However, those rights still exist, and courts must still address those issues through the appropriate balancing test.

EDIT: A cornerstone case to read, for those interested, is Parker v. Levy: https://supreme.justia.com/cases/federal/us/417/733/

[tomcam]

Anyone can request a jury trial in the USA. It's guaranteed by the Constitution.

[colinmhayes]

Right, but there are a lot of federal agencies that adjudicate and potentially give out harsh fines without actually being a court. If you are in that situation you do not have the right to a jury trial, at least until this case was decided.

[adrianba]

That's not true for all civil cases, though. The Seventh Amendment says, "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, ..." As has been described elsewhere here, this was interpreted to provide a jury right in suits at law but not in equity. You can also waive your jury right by agreeing not to invoke it, say in a contract.

[adrr]

Can I for my speeding ticket or parking ticket?

[gadflyinyoureye]

Yes. But it's complicated https://www.justia.com/traffic-tickets/proceedings-in-traffi...

[yeahwhatever10]

Yea it says how to on the ticket.

[adrr]

Not in my state.

https://www.courts.ca.gov/34711.htm?rdeLocaleAttr=en

[colejohnson66]

From that link:

> Under Penal Code sections 17(d) and 19.8, if certain offenses are charged as an infraction instead of as a misdemeanor, you can ask that the infraction charge be tried with a jury as a misdemeanor.

[FYYFFF]

Unless you signed an agreement that states otherwise... Most employee and contractor and user agreements fall into this category.

[ceejayoz]

Mandatory arbitration clauses seem to hold up in court fairly regularly.

[seanw444]

Get outta here ATF.

[vmception]

about time! I think the common circuits are too far up their own ass to just take a fresh view at simply questions. 2nd circuit and 9th circuit just see too much action. Get a panel of judges from Texas and Louisiana for once (5th circuit) and they took a fresh view and came to an understanding that matches a plain reading of the constitution.

there were a lot of barriers to this occurring though, which is a bigger issue.