New Pacific Legal Foundation report shows Congress can address unconstitutional agency tribunals without overwhelming federal courts

Washington, DC; August 28, 2024: In a new report — Re-Establish Justice: Creating a Right to Remove for the Accused — Adi Dynar and Keelyn Gallagher argue that Congress should allow all Americans facing in-house prosecution at federal agencies to have their case transferred to a real federal court created by Article III of the Constitution. 

“Congress must move to enshrine defendants’ Seventh Amendment rights into law, ensuring enforcement actions are decided by an independent third party rather than an agency employee alone,” said Adi Dynar, an attorney at Pacific Legal Foundation and co-author of the report. “The right to a jury trial does not vanish simply because you are dealing with a federal agency.”   

Forty-four agencies have in-house adjudication. In 2022, a sample of 15 agencies filed 1,923 in-house adjudication cases that resulted in more than $10 billion in monetary penalties. Of those cases, only 11% made it to a hearing. The rest were settled or dismissed. 

If the defendants in these cases had the ability to remove their cases to Article III courts, many — although not all — would. Even if every one of those cases were transferred to federal court, it would be a drop in the bucket compared to 353,170 cases filed in federal district courts in a 12-month period ending March 31, 2023. 

“Congress can protect the rights of Americans without overwhelming the courts,” said Keelyn Gallagher, research manager at Pacific Legal Foundation and co-author of the report. “Even if every one of these cases were moved to an Article III court, it would barely register on the courts’ dockets.”