The Hill: The dismal state of due process at the North Pole (and our federal agencies)

December 26, 2022 | By JOHN KERKHOFF , KYLE GRIESINGER

Every year, millions of kids wake up on Christmas to find that jolly old St. Nick has rendered his verdict on their performance over the past 12 months. Most think of Christmas morning as a time of joy and merriment; in reality, it’s merely the sentencing phase of a kangaroo court overseen by an out-of-touch tyrant at the North Pole.

Mr. Kringle apparently doesn’t share America’s view of due process. Timmy can get thrown on the naughty list — for any reason and with no right of appeal. Naturally, we Americans wouldn’t put up with that. Due process is right there in the Constitution, and we enjoy the rules of evidence, a trial in an unbiased court, a jury of our peers, and a right of appeal.

Timmy just gets a lump of coal.

It’s unjust. Just consider what kids are up against. Rules of evidence exist to protect the accused from faulty, insufficient, or improperly obtained evidence. But what evidence does Mr. Kringle provide to support his decision? “He sees you when you’re sleeping; he knows when you’re awake,” the old song says.

But the testimony of one allegedly omniscient busybody and hearsay from his pointy-eared informants wouldn’t be admitted into any court. And by the way, did Santa get a warrant for that surveillance?

Who ultimately decides whether Santa has proven his case? The very same man in the red suit who wrote the list in the first place.

Imagine a prosecutor who charges someone with a crime, argues the case and then climbs up to the judge’s seat to issue a ruling and hand down a verdict. James Madison put it simply: “[N]o man is allowed to be a judge in his own cause … because his interest would certainly bias his judgment.” Little Timmy doesn’t stand a chance.

But what of the jury? you may ask. Madison argued that the jury trial is “one of the best securities to the rights of the people,” and that it “ought to remain inviolate.” But North Pole justice admits of no such inconvenience as having to prove the Big Man’s case to a jury of little Timmy’s peers.

And finally, when dear old Père Noël has made his list, checked it twice, and condemned poor Timmy to a lump of coal, surely someone will check Santa’s work, right? Wrong. There’s no appeal. It’ll be another year before Timmy gets another chance for his dream gift. No one questions the Big Man.

From top to bottom, the North Pole is infected with unfair rules and procedures. But if you think that only Santa indulges in this kind of arbitrary rule, allow us to introduce you to federal agencies in America.

Many agencies run their own in-house courts. There, they make all the key decisions — whether regulated parties are “naughty” or “nice” — with about as much protection as Santa’s list-writing. But the stakes are a lot higher than Legos and Barbies under the Christmas tree.

If you wind up in the crosshairs of a federal agency, such as the Securities and Exchange Commission (SEC), Federal Trade Commission, or one of a dozen others, you may have a problem. Their in-house proceedings nearly always end with an agency win — which means you’re on the hook for serious legal repercussions. And just like little Timmy, you won’t get much say in the matter.

You see, the agency itself files the lawsuit against you. Agency prosecutors argue the case to an agency “judge.” The agency creates its own (usually lax) rules of evidence, if any exist at all. And when you decide to appeal, the same agency employees who filed the lawsuit will decide your appeal. And agencies don’t often think they’re wrong.

Whether their name is the fictitious Timmy, Michelle Cochran, who is embroiled in a dispute with the SEC, or Jamie Leach, who is battling the Consumer Product Safety Commission, Americans have a right to due process of law. And we shouldn’t allow anyone to violate that right, whether in federal buildings in Washington, or a workshop at the North Pole.

This op-ed was originally published at The Hill on December 26, 2022.