Legal AF by MeidasTouch - Supreme Court Makes FATAL DECISION for Key AGENCIES

Episode Date: June 29, 2024

Michael Popok explains that in twin decisions by the MAGA Justices on the Supreme Court against the Securities and Exchange Commission’s powers and throwing out 50 years of agency deference precedent, the Court may have accidentally put the brakes on Trump’s 2025 Project to use the power of agencies headed by his lackeys to implement his policies of vengeance and retribution through agency and Executive Laws. Get 10% off plus free shipping of your estate plan documents by visiting https://trustandwill.com/LEGALAF Visit https://meidastouch.com for more! Learn more about your ad choices. Visit megaphone.fm/adchoices

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Benefits vary by card, other conditions apply. Travel better with Air Canada. Enjoy free beer, wine, and premium snacks in economy class. Now extended to flights within Canada and the U.S. Cheers to taking off this summer. More details at airCanada.com. to the juiciest apples. Loblaws is committed to fresh, so you get the best fruits and veggies. Look for new value programs when you shop at Loblaws, in-store and online. Conditions may apply. See in-store for details. Michael Popak, Legal AF. It's throwing out Superprecedent Week

at the United States Supreme Court. They're tossing precedent and super precedent, precedent that's been on the books for over 40 years plus, out the window like it's a going-out-of-business sale. Precedent, which is the foundation of our starry, decisive system of jurisprudence at the Supreme Court level and the appeal level in which we rely on court precedent in our daily life and judges rely on it to make future decisions. We're not a civil code system. We're a common law slash stare decisis and precedent based system. But when you throw out what has been referred to as super precedent, precedent that's been on the books and reaffirmed and reinforced and applied by judges for the last

20, 30, 40, or 50 years, chaos it will result. How do I know that? How do I know this is a power grab by the far right led by Justice Roberts because he's got the number six to three? It's because Elena Kagan called it out in her own dissent related to the tossing effectively of what had been on the books for over 50 years known as the Chevron Doctrine in which courts always gave deference, always gave deference to administrative agencies who had the expertise in a certain area and regulation to make certain facts and even law conclusions. Not anymore. But I want to focus on what's happened now to the Securities and Exchange Commission.

The SEC is the administrative agency that's charged with regulating everything related to an investment and an investment security. It keeps the playing field level and makes sure that market participants, including investors on one side, issuers, companies on the other, brokers and dealers are all treated fairly, but primarily the investing market and communities playing on an even playing field. Without the Securities and Exchange Commission, we would have what happened to us in the Great Depression. You'd have people being taken advantage of in pyramid schemes, in pump and dump schemes, in boiler room operations and the like. So we have a robust administrative agency charged with regulating in the area. You know who doesn't want a robust Securities and Exchange Commission? Just coincidentally, a guy running for president, a guy named Donald Trump, a

guy who's had trouble with his first public company, Truth Social or Trump Media and Technology Group. He's had lots of troubles with the Securities and Exchange Commission. He's had lots of troubles with the Internal Revenue Service, another administrative agency. And he does not like a robust muscular Securities and Exchange Commission, an SEC that enforces the 1933 Act, the 1934 Act, and all the other regulations that go into making sure there's a level playing field, and widows and orphans and people like you and me aren't screwed in the marketplace

by people with insider knowledge, insider trading, and improper disclosures. And of course, who gets crushed? All the little guys. It's never the people who have the insider stock at some low price, it's people like you and me that buy it on the market. What happened?

Well, we got a new ruling by the United States Supreme Court, led again another six to three majority, in which it stripped from the Securities and Exchange Commission the ability to regulate and make people litigate their issues about the size of fines that have been imposed on them, banning from the industry, things like that, things like Donald Trump will be facing. They can no longer do it in administrative law proceedings. Now, let me explain something for a minute. Under the Administrative Procedures Act,

almost all administrative agencies have an internal dispute resolution mechanism. If you want to appeal a decision by the Securities and Exchange Commission, the five members of the Securities and Exchange Commission, you have to go to an administrative law judge. And that administrative law judge does work usually for that particular agency. And if there's an evidentiary process, there's a due process process, but it's not a courtroom. It's not an Article 3 judge. It's not a federal judge. You don't get a right to a jury trial. This was the old days. I've handled some of these matters in my prior

life on behalf of financial services companies. Now, we never liked it. We never liked the fact that when there weren't jury trials, we couldn't run into court and we had to actually just stay within what can sometimes be seen as a biased administrative law judge that actually works for that agency and gets his paycheck from that agency. But thems were the breaks. That's what we had to deal with. Those are the cards that you're dealt. No longer 50 years of precedent out the window. Securities and Exchange Commission is now going to have to go enforce their decisions if somebody doesn't like it in court in a jury trial. Now, if there was a criminal component

to the enforcement action, and sometimes the SEC has a criminal capacity, they work hand in glove with main justice or the US Attorney's Office, that kind of case always had a jury trial. It was never an administrative law judge. They're only, ALJs only handle civil enforcement proceedings, including in this case,

the case of the case that came before the Supreme court that led to this new decision today, a administrative law judge dealing with the fines or the size of the fines. Now I've been monitoring this case that's been winding its way up to the Supreme court for over five years. It was on the radar when I was still working for a large financial services company. It's known as the Jirkesi case, J-R-K-E-S-Y, brought by George Jirkesi. The SEC had fined him and banned him, and he didn't like it. He didn't like that he had to go through an administrative law judge. And so he appealed. There were some rulings in his favor, some rulings against him. It came up

through the Fifth Circuit in New Orleans and eventually got its way to the United States Supreme Court. Now look, just to give you sort of a background, the SEC alone was awarded $5 billion was awarded $5 billion with a capital B in civil penalties by administrative law judges upholding their fine-making powers. SEC goes first. Here's your fine. You don't like it, you go to an administrative law judge and they got a firm, but it's not a token amount. a token amount. Five billion dollars was raised by the SEC in 2023 alone and most of it through in-house proceedings. So now you've got a while the Biden administration is in power, you got yet another super precedent being ripped off the books. Earlier today you had the Chevron Doctrine, been on the books since 1984. It was on the book so long, I was taught it in law school about the deference that's automatically given

to an agency about areas of their expertise so that we don't try to turn judges into experts in so many fields, they got enough on their plate, and we defer to the experts. Those that know me, they know I'm a family man and I got a child on the way this summer. The things we build our future around are the things worth protecting and making an estate plan now means gaining security of your assets and peace of mind for you and your loved ones with trust and will. You can create and manage a custom estate plan starting at just $199.

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Now, on the one hand, you've got the Securities and Exchange Commission, which is going to have to regroup here. And when they're bargaining and they're trying to use their enforcement powers, now they've got on the other side, the person being imposed with a fine or with a ban now as leverage to negotiate something less because they can say, well, I'll see you in jury trial. Before the SEC was like, ha ha, I'll see you in the administrative law judge hearing,

which is not the same thing. They lost that. And so now it's gonna be more of a wild, wild west, less regulation, less, it's going to be more violations of the law without repercussion, more Bernie Madoffs, more Donald Trumps, right? A feckless securities and exchange commission, even in the hands of a strong chairperson like Gensler who's in there now, or a strong commission, just met its match with the United States Supreme Court. Sure, it benefits Donald Trump. That's a bad thing. I'm sure if it wasn't the Securities

and Exchange Commission, these Trumpers on the MAGA Supreme Court wouldn't have ruled in this way. The silver lining though, I like to end hot takes occasionally with silver linings in my analysis, with silver linings in my analysis, is that by ripping away the administrative deference in the Chevron decision that came out today, or the case that ripped away the Chevron doctrine by Chief Justice Roberts, that's going to put a little crimp in Donald Trump's abilities if he got reelected to use his own agency stooges, people that he placed in these agencies to issue administrative rulings and interpretations is now going to be cabined and going to be limited by this new ruling by the United States Supreme Court in conjunction with finding that you got to let anybody who gets a fine by one of these regulatory agencies go to

court, go to open court and have a jury trial. That combination is gonna undermine Donald Trump's 2025 project and trying to place stooges in the position of the chiefs or the chairpeople of these various agencies, like taking an owner of a coal mine and putting him in charge of the environmental protection agency, or a dirty polluter and putting them in charge of clean air or clean water,

which Donald Trump has been known to do. Watch when Rudy Giuliani becomes the attorney general after being disbarred. No requirement under the Constitution or anywhere else that the attorney general even be a lawyer, or a judge even be a lawyer or a Supreme Court Justice even be a prior judge not required So the silver lining I see between the tossing of these two super precedents dealing with the Administrative Procedures Act and the power of agencies is that in the next administration? There's gonna be a lot of limitations to what an administrative Agency can do even if pushed by the executive branch if it's being led

by a criminal like Donald Trump. And we're going to have to follow that. But I needed to report on this particular, the defanging of the Securities and Exchange Commission in a six to three vote is quite extraordinary. I didn't want people to lose sight. There's so many Supreme Court decisions coming out every two days. There's two or three of them. We're trying to catch them and explain them in the Midas Touch Network. This one's very important, especially when you've got a president who's not going to put any of his assets in a blind trust, who's going to continue to run this truth social media thing, Trump social media thing, and now have what's become a powerless, emasculated Securities and Exchange Commission because of the rulings today by the United States Supreme Court

in this particular Jarkessy decision. We'll continue to follow what happens in all administrative agency issues. It may sound like we're geeking out on administrative procedures, but most of our life that matters is there's some agency that is regulating in that area and governs it and imposes laws and rules around it. And more so than probably the day-to-day decision-making of the President of the United States. Agencies matter. And now we've got these two twin rulings that I wanted to bring to your attention. Follow me, Michael Popak on Legal AF on Wednesdays and Saturdays at 8 p.m. Eastern time, and then on audio podcast platforms of your choice. If you like what I'm doing here, give me a thumbs up and a comment. It helps with the

algorithmic gods and keeps me on the air. And then you can also follow me and all my body of work on the Midas Touch Network for YouTube. Look for playlists or contributors. Michael Popok, I'm number two up there and you'll find, I don't know, 1,300 or so hot takes just like this one. So until my next hot take, until my next Legal AF, this is Michael Popok reporting. Heary, heary, Legal AF Law Breakdown is now in session. Go beyond the headlines and get a deep dive into the important legal concepts you need to know and we discuss every day on Legal AF.

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