Fantasy stories delight our senses by taking us to imaginary worlds where wizards roam the earth and magic is real. Yet, in this fictional realm where readers have the pleasure of suspending reality, there are still universal truths that mirror the real world around us. The beloved Harry Potter series, for example, is ripe with lessons of injustice that are just as applicable to our own government as they are to the wizarding world’s Ministry of Magic.
In the series’ third book, The Prisoner of Azkaban, readers learn what happens when unelected government bureaucrats are allowed to play both judge and jury, denying an individual any chance to appeal their case to an impartial court—something we also deal with in the non-wizarding “muggle” world.
Devout Harry Potter fans remember the moment their hearts sank upon reading that Buckbeak, a magical creature called a hippogriff, was sentenced to death. Buckbeak, who belongs to Hogwarts School of Witchcraft and Wizardry professor and groundskeeper Rubeus Hagrid, had done nothing wrong. His alleged crime: defending himself when Harry’s nemesis and fellow Hogwarts student Draco Malfoy intentionally provoked the animal during Hagrid’s Care of Magical Creatures lesson.
Hagrid had instructed his students on the proper way to treat the hippogriff so as not to trigger any primal instincts of self-defense. Draco intentionally went against this advice. While clearly in the wrong, the arrogant and conniving boy runs to his father Lucius. Draco greatly exaggerates the story and claims to have nearly been killed by the hippogriff. The Malfoys, who yield great political influence in the wizarding world, use that power to intimidate the Hogwarts Board of Governors into investigating the matter.
Hogwarts is a government school overseen by an unelected board of 12 witches and wizards. The board is tasked with duties such as appointing and suspending headmasters and redressing any concerns parents might have.
After considering Draco’s version of events, the board hands the matter over to another unelected ministry agency, the Committee for the Dangerous Disposal of Magical Creatures, who try Buckbeak’s case in their own in-house tribunal.
Buckbeak ultimately is found guilty and condemned to death by beheading. Hagrid is beside himself and decides to appeal the decision. But don’t be fooled: The committee’s appeal process bears no semblance of justice.
The appeal will not be heard by an impartial government body. Instead, the very same committee that doled out Buckbeak’s death sentence will also preside over the appeal.
Absent the opportunity for Hagrid to make Buckbeak’s case in front of a neutral court, it’s foolish to think that any minds will be changed—especially not when Lucius is threatening the committee members.
From the book:
“Malfoy’s dad’s frightened the Committee into it,” said Hermione, wiping her eyes.
“They’re a bunch of doddery old fools, and they were scared. There’ll be an appeal, though, there always is. Only I can’t see any hope…”
Hermione’s fears turn out to be true. Buckbeak’s original death sentence is upheld.
In a world of magic, anything is possible … including a happy ending for the condemned hippogriff. After the tragic beheading, Harry Potter and Hermione use a “time-turner” to go back in time and save Buckbeak from an unjust death. Great news for the fate of the hippogriff, but unfortunately for those of us in the real world, without access to magical time-turning gadgets, we are at the mercy of an agency’s disciplinary actions.
However, much like the wizarding world, we do face the unjust reality of in-house tribunals within the administrative state, thanks to a process called agency adjudication. While the real-life agency adjudication won’t result in an execution, it can and often does threaten the livelihood of Americans.
Frank Black is the founder of Southeast Investments (SEI), a North Carolina-based securities broker-dealer. Federal laws require both Frank and his company to register with the U.S. Securities and Exchange Commission (SEC) and its partner regulatory arm, the Financial Industry Regulatory Authority (FINRA).
Even though it works with government regulators, FINRA is a private corporation. It is run by a 22-member board of governors and has a nationwide staff of nearly 4,000. Its primary task is to enforce SEC regulations. Beyond that, FINRA is also given the power to create and enforce its own rules. In 2012, the quasi-government agency set its sights on SEI.
One of FINRA’s rules requires brokerage firms to closely monitor their registered representatives who manage clients’ investments. This means Frank was required to supervise and inspect his representatives’ offices once every three years. Between 2010 and 2015, SEI had anywhere between 114 and 133 registered representatives, some of whom worked remotely, all of whom Frank supervised and inspected in compliance with FINRA rules.
Frank was diligent in complying with the FINRA rules and made 43 road trips across the country to personally inspect each of his registered representatives’ remote workplaces. During a routine examination, FINRA learned that four registered representatives in North Carolina, South Carolina, New York, and Ohio worked remotely. Even though Frank paid a visit to each one, he did not keep his gas station and hotel receipts. Without those records, FINRA claimed Frank had insufficient proof that he had visited each office.
After being subject to an in-house tribunal, Frank was slapped with a $243,000 fine, but worst of all, he was permanently banned from working in the financial industry, which is essentially a “corporate death penalty.”
The lifetime ban has been in effect since 2019. After five decades working in the financial industry, Frank has lost access to the career that enabled him to earn a living.
Perhaps the worst part about the whole debacle is the fact that even though Frank did nothing wrong, he has no recourse against FINRA’s decision. He has been denied his day in a real and impartial court for years. The agency assumed absolute power over the matter, leaving Frank powerless to push back against the accusations made against him.
These in-house tribunals are not unique to the SEC. Many executive agencies have their own in-house tribunals that look like courts, but these makeshift/pretend courts violate the most fundamental aspects of due process and the rule of law. This is agency adjudication.
If a regulatory agency believes you have violated a statute or a regulation, it can haul you before its own biased tribunal and slap you with astronomical fines and take your livelihood, your business, and even your home.
Perhaps the Ministry of Magic is not bound by a constitution, but the U.S. Constitution is clear: Regulatory agencies do not have the authority even to put individuals on trial. That power rests with the judicial branch alone. Yet, the executive branch routinely usurps the role of the judiciary by going beyond its delegated constitutional duties and trying individuals within their own courts that operate outside of the separation of powers.
Frank may not have a time-turner like Harry Potter and his friends, but he did come across someone who could help him. Frank teamed up with Pacific Legal Foundation, which is helping him fight for his right to a fair trial. While the suit goes on, Frank obtained one small victory. The SEC rejected FINRA’s attempt to bench Frank for life. But it took the SEC four-and-a-half years to state the obvious, thus once again confirming that the process of agency adjudication itself can be a ruinous punishment.
Pacific Legal Foundation is working to end agency adjudication once and for all and protect people like Frank.
Whether you live among muggles or wizards, there can be no justice when unelected government agencies are allowed to play judge and jury, denying the accused their right to appeal an agency’s actions in an impartial court.