Yale Journal on Regulation: Doomsday Predictions About Jarkesy Just Don’t Add Up
In response to the U.S. Supreme Court’s 2024 decision in Securities and Exchange Commission v. Jarkesy, a NYU Law Professor wrote in The Atlantic, “Jarkesy continues the Court’s attack on the federal government’s capacity to do many of its most basic jobs.”
This captured the sentiment among many who felt that this decision, which affirmed the right of a defendant facing a fraud suit to a jury trial before a neutral judge, would destabilize the modern administrative state.
That was true even of the dissenting justices. Justice Sotomayor wrote that the majority opinion “takes a wrecking ball to this settled law and stable government practice,” namely, of federal agencies like the SEC adjudicating such disputes themselves.
At the heart of Jarkesy is a constitutional principle: When the government seeks to impose significant penalties involving private rights—life, liberty, or property—defendants are entitled to a jury trial in an Article-III court. That’s not a radical innovation; it’s a reaffirmation of a core constitutional safeguard. What’s new is the Court’s application of that principle to certain agency adjudications conducted in-house.
From this narrow holding, critics have extrapolated sweeping predictions about administrative paralysis. But the data simply don’t support those claims, according to research from Pacific Legal Foundation.
The overwhelming majority of agency adjudications across more than 30 federal departments and agencies—about 98.5 percent in any given year—involve what the Court calls “public rights.” These include disputes over government benefits, immigration status, taxes, public lands, Indian relations, and customs that arise from an individual’s relationship with the state. These roughly 900,000 cases annually have long been handled within administrative tribunals, and Jarkesy does nothing to change that.
What about the remaining slice?
Only one to two percent of agency adjudications each year even potentially implicate private rights. That’s roughly 13,000 in total. And that estimate is deliberately broad—it captures the outer edge of what might be affected under an expansive reading of Jarkesy. In reality, the number of cases that would actually need to move to federal court is likely smaller still.
This matters because the dire predictions about Jarkesy depend on a false premise: that hundreds of thousands of complex cases will suddenly flood the judiciary. But that’s not going to happen. The vast majority of agency adjudications in any given year fall into categories that courts have long upheld as constitutionally sound.
But we shouldn’t minimize the one to two percent of agency adjudications that implicate the private rights of life, liberty, or property. These are the most important cases. They include, at the very least, about 1,900 enforcement actions per year that, under Jarkesy, should be heard before Article-III judges and juries. These must respect constitutional boundaries.
The Constitution’s separation of powers is not a technicality. It is a safeguard. When the government seeks to punish individuals or take their property, the Framers insisted on neutral adjudication in independent courts, with the right to a jury. That principle reflects a basic mistrust of concentrated power—a mistrust that remains well-founded. And Jarkesy is a much-needed correction.
Indeed, the data suggest that the vast bulk of agency work will continue unchanged. Public benefits, immigration, and tax disputes will still be heard in agency proceedings.
What Jarkesy does is relatively modest but resoundingly important: It asserts that there are constitutional limits to the government acting as prosecutor, judge, and jury in matters affecting core private rights. And moving anywhere from 1,900 to 13,000 agency cases each year from in-house tribunals to federal court would not swamp the federal judiciary in any meaningful way.
That’s not an attack on governance. It’s a reminder that despite an ever-complex administrative state, the Constitution still governs. And that’s something worth preserving.
This op-ed was originally published the Yale Journal on Regulation on April 22, 2026.
