Amicus Curiae Brief — Herbert Hirsch, et al., Petitioners v. United States Tax Court

No. 25-739

IN THE

Supreme Court of the United States

_________________________________________________

HERBERT HIRSCH, BONITA HIRSCH, HARVEY BIRDMAN,

AND DIANE BIRDMAN,

Petitioners,

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONERS

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

January 21, 2026

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................2

Argument .....................................................................5

I.

The Jury-Trial Right Is a Key Check Against

Arbitrary Government Power ..........................5

II.

Civil Penalties Trigger Seventh Amendment

Protections ........................................................8

III.

The IRC’s Tax Penalty Scheme Appears a Poor

Fit For The Public-Rights Exception .............10

IV.

The IRC’s Tax Penalty Scheme Is Hard to

Square With Article III ..................................14

V.

This Court Should Build On Jarkesy and

Repudiate Atlas Roofing .................................15

Conclusion .................................................................17

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Asphalt Indus., Inc. v. Commissioner,

384 F.2d 229 (3d Cir. 1967) .......................... 9, 10

Atlas Roofing v. Occupational Safety &

Health Review Commission,

430 U.S. 442 (1977) ............................................. 2

AT&T, Inc. v. FCC,

149 F.4th 491 (5th Cir. 2025) ............................. 9

Axalta Coating Sys. LLC v. FAA,

144 F.4th 467 (3d Cir. 2025) 10, 12, 13, 14, 16, 17

Axon Enter. v. FTC,

598 U.S. 175 (2023) ..................................... 10, 15

C.J. Hendry Co. v. Moore,

318 U.S. 133 (1943) ............................................. 6

Curtin v. Commissioner,

No. 32212-15, 2023 U.S. Tax Ct. LEXIS

3824 (T.C. Oct. 2, 2023) .................................... 15

Curtis v. Loether,

415 U.S. 189 (1974) ............................................. 8

Damsky v. Zavatt,

289 F.2d 46 (2d Cir. 1961) ................................ 13

Dimick v. Schiedt,

293 U.S. 474 (1935) ............................................. 8

iii

Erlinger v. United States,

602 U.S. 821 (2024) ............................................. 6

Freytag v. Commissioner,

501 U.S. 868 (1991) ........................................... 15

Granfinanciera v. Nordberg,

492 U.S. 33 (1989) ............................... 8, 9, 10, 14

Jarkesy v. SEC,

34 F.4th 446 (5th Cir. 2022) ............................... 5

In re Renewable Energy Dev. Corp.,

792 F.3d 1274 (10th Cir. 2015) ....... 10, 11, 16, 17

Int’l Union of Operating Eng’rs, Stationary

Eng’rs, Local 39 v. NLRB,

155 F.4th 1023 (9th Cir. 2025) ........................... 9

INS v. Chadha,

462 U.S. 919 (1983) ............................................. 7

Kuretski v. Comm’r of IRS,

755 F.3d 929 (D.C. Cir. 2014) ........................... 15

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 431 (1819) ............................. 2

Murray’s Lessee v. Hoboken Land &

Improvement Co.,

59 U.S. (18 How.) 272 (1855) ................ 10, 14, 15

iv

Neder v. United States,

527 U.S. 1 (1999) ................................................. 5

N. Pipeline Constr. Co. v. Marathon Pipe

Line Co.,

458 U.S. 50 (1982) ............................................. 11

NLRB v. Starbucks Corp.,

159 F.4th 455 (6th Cir. 2025) ............................. 9

Oil States Energy Servs., LLC v. Greene’s

Energy Grp., LLC,

584 U.S. 325 (2018) ........................................... 14

Parklane Hosiery Co., Inc. v. Shore,

439 U.S. 322 (1979) ............................................. 7

Parsons v. Bedford,

28 U.S. (3 Pet.) 433 (1830) .............................. 5, 8

Pernell v. Southall Realty,

416 U.S. 363 (1974) ............................................. 8

Phillips v. Comm’r,

283 U.S. 589 (1931) ........................................... 11

Reid v. Covert,

354 U.S. 1 (1957) ................................................. 5

SEC v. Jarkesy,

603 U.S. 109 (2024) ... 2, 7, 8, 9, 11, 12, 13, 15, 16

v

Silver Moss Props., LLC v. Comm’r,

165 T.C. No. 3,

2025 WL 2416867 (Aug. 21, 2025)...................... 4

Stern v. Marshall,

564 U.S. 462 (2011) ........................................... 14

Thomas v. Humboldt Cty.,

223 L.Ed.2d 141 (2025) ................................... 6, 7

Tull v. United States,

481 U.S. 412 (1987) ............................................. 9

United States v. Haymond,

588 U.S. 634 (2019) ............................................. 6

United States v. Stein,

881 F.3d 853 (11th Cir. 2018) ......................... 6, 7

Waldman v. Stone,

698 F.3d 910 (6th Cir. 2012) ............................. 16

Wellness Int’l Network, Ltd. v. Sharif,

575 U.S. 665 (2015) ........................................... 15

Constitution

U.S. Const. Art. III, § 2, cl. 1.................................. 14

U.S. Const. amend. VII ............................................ 7

Statutes

26 U.S.C. § 6651(a)(1) .............................................. 3

vi

26 U.S.C. § 6651(f) .................................................... 3

28 U.S.C. § 1346(a)(1) .............................................. 3

28 U.S.C. § 2402 ....................................................... 3

Other Authorities

Aaron L. Nielson, Christopher J. Walker &

Melissa F. Wasserman,

Saving Agency Adjudication,

103 Tex. L. Rev. 1013 (2025) ............................ 15

Bryan T. Camp,

The Impact of SEC v. Jarkesy on Civil

Tax Fraud Penalties,

27 Fla. Tax Rev. 478 (2024) ........................ 11, 12

Caleb Nelson,

The Constitutionality of Civil Forfeiture,

125 Yale L.J. 2446 (2016) ................................... 6

Decl. of Independence (1776) ................................... 6

Gray Proctor,

Twelve Angry Taxpayers: Why The

Constitution Might Guarantee a Jury

Trial For Accuracy and Fraud Penalties

in Tax Cases After SEC v. Jarkesy,

99 Fla. Bar J. 58 (2025) .................................... 13

vii

Jennifer Mascott,

Constitutionally Conforming Agency

Adjudication, 2 Loyola U. Chi. J. Reg.

Compliance 22 (2017)........................................ 10

Kenneth Klein,

The Validity of The Public Rights

Doctrine in Light of the Historical

Rationale of the Seventh Amendment,

21 Hastings Const. L.Q. 1013 (1994) ................. 7

Philip Hamburger,

Is Administrative Law Unlawful? (2014)........... 8

Philip Hamburger,

The Value of Jury Trial Rights,

93 Geo. Wash. L. Rev. 1283 (2025) ..................... 5

Roger W. Kirst,

Administrative Penalties and the Civil

Jury: The Supreme Court’s Assault on

the Seventh Amendment,

126 U. Pa. L. Rev. 1281 (1978) ................... 11, 13

The Federalist No. 83 (Hamilton) ............................ 3

3 William Blackstone, Commentaries on the

Laws of England, A Facsimile of the

First Edition of 1765–1769 (1789)

(University of Chicago Press 1979) .................... 5

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioners.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open

society. Some of those ideas include constitutionally

limited government, the separation of powers, and

due process of law. As part of this mission, it appears

as amicus curiae before federal and state courts.

AFPF believes that when the federal government

brings an enforcement action implicating core private

rights the Constitution requires that it do so in a

neutral Article III court, subject to the Seventh

Amendment jury-trial right if the government seeks

legal relief such as punitive civil penalties. AFPF

takes no position on whether the tax penalties at issue

here are warranted but believes that Petitioners are

likely entitled to have a jury make those factual

determinations in an Article III court before the

1 All parties have received timely notice of amicus curiae’s intent

to file this brief. Amicus curiae states that no counsel for any

party authored this brief in whole or in part, and no entity or

person, aside from amicus curiae or its counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

2

Internal Revenue Service (“IRS”) may impose those

monetary penalties.

More broadly, AFPF writes to highlight the

doctrinal importance of the questions presented by

the Petition. This Court’s recent decision in SEC v.

Jarkesy, 603 U.S. 109 (2024), took an important step

toward returning this Court’s Seventh Amendment

and public-rights jurisprudence to constitutional first

principles. But the line between private rights subject

to Article III and the Seventh Amendment, and public

rights exempt from those constitutional requirements

remains murky. Jarkesy’s structural approach is

difficult to reconcile with this Court’s functionalist

public-rights precedent, exemplified by Atlas Roofing

v. Occupational Safety & Health Review Commission,

430 U.S. 442 (1977)—an outlier decision that

“depart[ed] from our legal traditions,” Jarkesy, 603

U.S. at 138 n.4. These conflicting lines of cases have

sown confusion in lower courts. This Court should put

an end to this muddled state of affairs by articulating

a coherent, judicially manageable rule grounded in

the Constitution’s original public meaning and

Founding-era historical traditions.

SUMMARY OF ARGUMENT

This Court has said that “the power to tax involves

the power to destroy[.]” McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316, 431 (1819). That proposition

holds doubly true when monetary penalties are

layered on top. Juries have historically played an

important role in protecting against government

abuse of this awesome power. As the Framers

understood, the civil jury-trial right operates as “a

3

safeguard against an oppressive exercise of the power

of taxation,” The Federalist No. 83 (Hamilton),

interposing ordinary citizens between the sovereign

and the individual.

Today, however, the Internal Revenue Code

(“IRC”) deprives taxpayers facing civil penalties of the

right to a jury trial in an Article III court unless they

first pay the deficiency asserted by the IRS, penalties

included. These IRS-imposed monetary penalties can

be nearly double the assessed tax liability. 26 U.S.C.

§§ 6651(a)(1), (f). And the price of a jury trial can be

staggeringly expensive—for each set of Petitioners,

for example, upwards of $15 million. See Pet. 7. Only

then can they sue for a refund in an independent

federal court and assert their right to be tried by a

jury of their peers. See 28 U.S.C. §§ 1346(a)(1), 2402.

Taxpayers who cannot afford to do so are out of luck.

The only other option taxpayers have to contest the

IRS’s administrative charges is to do so in a so-called

Article I court—in reality, an Article II body wielding

the same Executive power as the IRS—without a jury

trial or the procedural protections that obtain in

Article III courts.

This arrangement is fundamentally unfair to

taxpayers facing daunting monetary penalties—

particularly those who lack the ability to pay for their

day in a federal court and right to demand a jury trial.

It also appears difficult to square with the Seventh

Amendment and Article III, both under Jarkesy and

as an original matter. At the least, the IRC’s civilpenalty scheme raises serious constitutional

questions that deserve to be answered on the merits

and not merely brushed aside without reasoning, as

happened below. See App. 2a.

4

Under this Court’s precedent, the collection of tax

revenue may be a public right that falls outside of

Article III and the Seventh Amendment, and which

may be effectuated in administrative proceedings. But

there is good reason to think that tax penalties stand

on distinct constitutional footing and should therefore

be subject to higher procedural protections, including

the right to a jury trial before the IRS may impose

these sanctions. More broadly, the Tax Court’s

reasoning below, see App. 3a–9a; Pet. 27–28, and in

other cases, see Pet. 28–29; Silver Moss Props., LLC v.

Comm’r, 165 T.C. No. 3, 2025 WL 2416867, at *6–10

(Aug. 21, 2025), highlights the need for this Court to

take up where it left off in Jarkesy and “definitively

explain[] the distinction between public and private

rights[.]” 603 U.S. at 131 (cleaned up). This Petition

provides an ideal vehicle to start that process.

Petitioners’ objections to the IRC’s juryless process

are weighty. See Pet. 19–31. And had the Eleventh

Circuit assessed those claims without putting a heavy

thumb on the scale against granting relief—an

approach in the majority of circuits when the jurytrial right is at stake, see Pet. 10–14—Petitioners may

well have prevailed. The highly restrictive mandamus

standard that obtains in the Eleventh Circuit likely

dictated the outcome. The vindication of the jury-trial

right should not turn on geography in this way.

This Court should grant the Petition.2

2 At a minimum, this Court should hold the Petition pending

disposition of FCC v. AT&T, No. 25-406, and Verizon

Communications Inc. v. FCC, No. 25-567, which raise questions

about whether a back-end jury trial satisfies the Constitution.

5

ARGUMENT

I.

The Jury-Trial Right Is a Key Check

Against Arbitrary Government Power.

“The trial by jury is justly dear to the American

people,” Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446

(1830) (Story, J.), and has been described as “the

spinal column of American democracy,” Neder v.

United States, 527 U.S. 1, 30 (1999) (Scalia, J.,

concurring in part, dissenting in part). It is not only a

“politically important” right that is “valuable for

jurors” but “essential for limiting government and

preserving liberty.” Philip Hamburger, The Value of

Jury Trial Rights, 93 Geo. Wash. L. Rev. 1283, 1295

(2025) (citations omitted). The jury-trial right is “one

of our most vital barriers to governmental

arbitrariness,” Reid v. Covert, 354 U.S. 1, 10 (1957)

(plurality), promising “parties that their fates can be

decided by individuals who are apt to see their case

very differently than a government official” and

“letting ordinary people be the ultimate decision

makers,” Hamburger, 93 Geo. Wash. L. Rev. at 1295.

The civil jury-trial right is deeply rooted in our

history and tradition. “Veneration of the jury as

safeguard of liberty predates the American

Founding.” Jarkesy v. SEC, 34 F.4th 446, 451 n.2 (5th

Cir. 2022), aff’d sub nom., 603 U.S. 109 (2024).

Blackstone, for example, described “the trial by jury”

“as the glory of the English law.” 3 William

Blackstone, Commentaries on the Laws of England, A

Facsimile of the First Edition of 1765–1769, at 379

(1789) (University of Chicago Press 1979).

“Prominent among the reasons colonists cited in

the Declaration of Independence for their break

6

with Great Britain was the fact Parliament and the

Crown had ‘depriv[ed] [them] in many cases, of the

benefits of Trial by Jury.’” Erlinger v. United States,

602 U.S. 821, 829 (2024) (quoting Decl. of

Independence ¶ 20). This cited grievance extended to

the Crown’s collection of taxes. Indeed, “the denial of

the right to a jury in tax cases became a chief

complaint animating the American Revolution.”

United States v. Stein, 881 F.3d 853, 859 (11th Cir.

2018) (en banc) (Pryor, J., concurring). “Colonists

bitterly complained both about taxation without

representation and about the use of the viceadmiralty courts for revenue matters that, in

England, would have been tried to a jury in the Court

of Exchequer.”3 Caleb Nelson, The Constitutionality of

Civil Forfeiture, 125 Yale L.J. 2446, 2464 (2016).

For the Founding generation, the jury-trial right

was a core protection of individual liberty. The

Framers “considered the right to trial by jury ‘the

heart and lungs, the mainspring and the center wheel’

of our liberties, without which ‘the body must die; the

watch must run down; the government must become

arbitrary.’” United States v. Haymond, 588 U.S. 634,

640–41 (2019) (plurality) (citation omitted). “If the

Federalists and Anti-Federalists disagreed about

anything when it came to the civil jury trial right, it

may have only been about whether the right was ‘the

most important of all individual rights, or simply one

of the most important rights.’” Thomas v. Humboldt

3 This “rise of the vice-admiralty courts” was “prompted in part

by the Crown’s desire to have access to a forum not controlled by

the obstinate resistance of American juries.” C.J. Hendry Co. v.

Moore, 318 U.S. 133, 140–42 (1943).

7

Cty., 223 L.Ed.2d 141, 141–42 (2025) (Gorsuch, J.,

statement respecting denial of certiorari) (citation

omitted). The absence of a textually guaranteed civil

jury-trial right in the Constitution “almost prevented

the ratification of” our founding document. Stein, 881

F.3d at 860 (Pryor, J., concurring).

This fundamental procedural protection is

enshrined in the Seventh Amendment, which was “the

price exacted in many States for approval of the

Constitution.”4 Parklane Hosiery Co., Inc. v. Shore,

439 U.S. 322, 342 (1979) (Rehnquist, J., dissenting).

It promises that “[i]n Suits at common law . . . the

right of trial by jury shall be preserved,” U.S. Const.

amend. VII, “securing it against the passing demands

of expediency or convenience,” Jarkesy, 603 U.S. at

122 (cleaned up).5 This provision “operates together

with Article III and the Due Process Clause of the

Fifth Amendment to limit how the government may

go about depriving an individual of life, liberty, or

property.” Id. at 141 (Gorsuch, J., concurring). And

consistent with its importance, this Court has long

made clear that any “encroachment upon” the

Seventh Amendment’s jury-trial guarantee must be

4 See Kenneth Klein, The Validity of The Public Rights Doctrine

in Light of the Historical Rationale of the Seventh Amendment,

21 Hastings Const. L.Q. 1013, 1015 (1994) (“[O]nly by promising

the Seventh Amendment did the Federalists secure adoption of

the Constitution in several of the state ratification debates.”).

5 The decisions “made in the Constitutional Convention impose

burdens on governmental processes that often seem clumsy,

inefficient, even unworkable, but those hard choices were

consciously made by men who had lived under a form of

government that permitted arbitrary governmental acts to go

unchecked.” INS v. Chadha, 462 U.S. 919, 959 (1983).

8

“watched with great jealousy,” Parsons, 28 U.S. (3

Pet.) at 446, and “any seeming curtailment of” its

protections “should be scrutinized with the utmost

care,” Dimick v. Schiedt, 293 U.S. 474, 486 (1935).

II.

Civil

Penalties

Trigger

Amendment Protections.

Seventh

“[F]rom the start, the Seventh Amendment was

understood to protect th[e jury-trial] right ‘not merely’

in suits recognized at common law, but in ‘all suits

which are’ of legal, as opposed to ‘equity [or]

admiralty[,] jurisdiction.’”6 Jarkesy, 603 U.S. at 165

(Gorsuch, J., concurring) (quoting Parsons, 28 U.S. (3

Pet.) at 447 (emphasis added)). This means that it

“requires trial by jury in actions unheard of at

common law,” Pernell v. Southall Realty, 416 U.S.

363, 375 (1974), and “appl[ies] to actions enforcing

statutory rights, . . . if the statute creates legal rights

and remedies,” Curtis v. Loether, 415 U.S. 189, 194

(1974). And Congress cannot “conjure away” its

demands by funneling such “traditional legal claims”

to “administrative tribunal[s].” Granfinanciera v.

Nordberg, 492 U.S. 33, 52 (1989).

Jarkesy reaffirmed that the civil jury-trial right

“extends to a particular statutory claim if the claim is

‘legal in nature.’” 603 U.S. at 122 (quoting

6 According to Professor Hamburger, “what led to the adoption of

the Seventh Amendment were demands for jury rights in civil

actions, and the amendment therefore guarantees juries in suits

at common law—that is, in all civil cases outside of equity and

admiralty—not merely in common law actions.” Philip

Hamburger, Is Administrative Law Unlawful? 246–47 (2014).

9

Granfinanciera, 492 U.S. at 53). Under Jarkesy, this

inquiry turns on both “the cause of action and the

remedy[.]” Id. at 123 (citation omitted); see AT&T, Inc.

v. FCC, 149 F.4th 491, 497 (5th Cir. 2025), cert.

granted, No. 25-406. Of these considerations, Jarkesy

teaches that the relief matters more and can be “all

but dispositive.” 603 U.S. at 123. Indeed, Jarkesy

suggests that in some instances “the remedy alone

may be enough to invoke the Seventh Amendment,”

Int’l Union of Operating Eng’rs, Stationary Eng’rs,

Local 39 v. NLRB, 155 F.4th 1023, 1063 (9th Cir.

2025) (Bumatay, J., dissenting) (citing Jarkesy, 603

U.S. at 123–24), such as where an agency seeks civil

penalties, see NLRB v. Starbucks Corp., 159 F.4th

455, 474 (6th Cir. 2025) (Seventh Amendment applies

“whenever an agency seeks civil penalties or pursues

common law actions” (citation omitted)).7

Monetary relief is “legal” and therefore triggers the

Seventh Amendment’s jury-trial right “if it is if it is

designed to punish or deter the wrongdoer,” as

opposed to “solely to ‘restore the status quo.’” Jarkesy,

603 U.S. at 123 (quoting Tull v. United States, 481

U.S. 412, 422 (1987)). That well describes the

daunting and retributive tax penalties at issue here,

which are intended “not to compensate for loss, but to

punish and deter wrongful conduct.” Asphalt Indus.,

7 It is thus of no moment whether the government’s action is

conceived “as a civil-penalties suit or something akin to a

traditional fraud claim: At the founding, both kinds of actions

were tried in common-law courts.” Jarkesy, 603 U.S. at 150–51

(Gorsuch, J., concurring). In any event, it appears likely the

Seventh Amendment applies for the independent reason that tax

penalties are akin to traditional fraud actions. See Pet. 25–26.

10

Inc. v. Commissioner, 384 F.2d 229, 234–35 (3d Cir.

1967). “A civil penalty was a type of remedy at

common law that could only be enforced in courts of

law.”8 Tull, 481 U.S. at 422. Such is the case here and

therefore the Seventh Amendment right is implicated.

III.

The IRC’s Tax Penalty Scheme Appears a

Poor Fit For The Public-Rights Exception.

“Unless a legal cause of action involves ‘public

rights,’ Congress may not” legislatively abrogate the

Seventh Amendment’s promise of a jury trial.

Granfinanciera, 492 U.S. at 53. “The original idea”

animating the public-rights doctrine “appears to have

been that certain rights belong to individuals

inalienably . . . and they may not be deprived except

by an Article III judge,” In re Renewable Energy Dev.

Corp., 792 F.3d 1274, 1278 (10th Cir. 2015), subject to

the jury-trial right.9 At the same time, this doctrine

8 Historically, that principle has also applied “[a]ctions by the

Government to recover civil penalties under statutory

provisions, which were “viewed as one type of action in debt

requiring trial by jury.” Tull, 481 U.S. at 418–19.

9 As originally understood, private rights include “life, liberty,

and property[.]” Axon Enter. v. FTC, 598 U.S. 175, 198 (2023)

(Thomas, J., concurring); see Jennifer Mascott, Constitutionally

Conforming Agency Adjudication, 2 Loyola U. Chi. J. Reg.

Compliance 22, 45 (2017) (describing federal “deprivations or

transfers of life, liberty, or property” as “‘core’ of cases” reserved

to Article III courts). Cf. Murray’s Lessee v. Hoboken Land &

Improvement Co., 59 U.S. (18 How.) 272, 284 (1855). “In fact, the

Founding generation insisted that any time the government

deprived someone of life, liberty, or property, it was depriving

him of private rights.” Axalta Coating Sys. LLC v. FAA, 144 F.4th

467, 485 (3d Cir. 2025) (Bibas, J., concurring).

11

posits that “additional legal interests,” which we

would today call public rights, “may be generated by

positive law and belong to the people as a civic

community and disputes about their scope and

application may be resolved through other means,

including legislation or executive decision.”10 Id.

“Jarkesy creates uncertainty on how the public

rights doctrine now considered as an exception applies

to tax fraud penalties.” Bryan T. Camp, The Impact of

SEC v. Jarkesy on Civil Tax Fraud Penalties, 27 Fla.

Tax Rev. 478, 508 (2024). On the one hand, under this

Court’s precedent collection of tax revenue is a public

right that can be adjudicated in a non-Article III

tribunal in the first instance.11 See Jarkesy, 603 U.S.

at 152–53 (Gorsuch, J., concurring) (public rights

“ha[ve] traditionally included the collection of

revenue”). This function of the Tax Court poses no

constitutional problem under current precedent. See

Phillips v. Comm’r, 283 U.S. 589, 595–96 (1931). The

knottier question is what happens when the Tax

10 “[T]he presence of the United States as a proper party to the

proceeding is a necessary but not sufficient means of

distinguishing ‘private rights’ from ‘public rights.’” N. Pipeline

Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69 n.23

(1982). Instead, “what matters is the substance of the suit, not

where it is brought, who brings it, or how it is labeled.” Jarkesy,

603 U.S. at 135.

11 But cf. Roger W. Kirst, Administrative Penalties and the Civil

Jury: The Supreme Court’s Assault on the Seventh Amendment,

126 U. Pa. L. Rev. 1281, 1338 (1978) (suggesting that Foundingera “precedents do not support the conclusion . . . that ‘taxes may

constitutionally be assessed and collected . . . with the relevant

facts in some instances being adjudicated only by an

administrative agency’” (citation omitted)).

12

Court veers off from tax revenue collection and

adjudicates what appears to be a garden-variety

private-rights dispute where the IRS seeks

quintessential “legal” monetary relief in the form of

punitive civil penalties, as happened here. Intuitively,

it makes sense to separate the two. And Jarkesy

appears to indicate that heightened procedural

safeguards are required in the latter case. See 603

U.S. at 132.

At a higher level, Jarkesy “turn[ed] the [publicrights] doctrine from a rule into an exception,

rebalancing the interests of citizens and the executive

branch in having Article III involvement in

government operations.” Camp, 27 Fla. Tax Rev. at

501. As Jarkesy explained, “[t]he public rights

exception is . . . an exception. It has no textual basis in

the Constitution and must therefore derive instead

from background legal principles.” 603 U.S. at 131.

“Even with respect to matters that arguably fall

within the scope of the ‘public rights’ doctrine, the

presumption is in favor of Article III courts.” Id. at 132

(cleaned up). Jarkesy further suggests that as a

matter of constitutional first principles courts should

“(1) presume that a cause of action does not involve

public rights, unless (2) it fits within the public-rights

categories that existed when Article III was ratified.”

Axalta, 144 F.4th at 483 (Bibas, J., concurring).

Although the matter is not free from doubt, there

are at least two reasons to think that the IRC’s tax

penalty scheme may fit poorly, if at all, within the

public-rights exception under Jarkesy’s framework.

First, even if the monetary penalties at issue here

arguably fall within the public-rights exception by

13

virtue of their connection to the collection of tax

revenue, application of Jarkesy’s presumption in favor

of private rights counsels that imposition of these

penalties implicate core private rights—and the

attendant constitutionally required protections.

Second, “traditionally recognized public rights

have at least one feature in common: a serious and

unbroken historical pedigree.” Jarkesy, 603 U.S. at

153 (Gorsuch, J., concurring). “[U]nder the common

law of England in 1791, an action by the Crown to

recover a judgment for taxes was a suit at common law

in which the right of jury trial existed.” Damsky v.

Zavatt, 289 F.2d 46, 49 (2d Cir. 1961); see Kirst, 126

U. Pa. L. Rev. at 1338 (common law “clearly

recognized the right of a taxpayer to a jury trial in an

action against the collector”). “Before and after the

American Revolution, tax penalties were collected by

suit against the taxpayer.” Gray Proctor, Twelve

Angry Taxpayers: Why The Constitution Might

Guarantee a Jury Trial For Accuracy and Fraud

Penalties in Tax Cases After SEC v. Jarkesy, 99 Fla.

Bar J. 58, 58 (2025). “That early American tradition of

jury trial for tax penalties continued through the

founding era into the first years of the Civil War[.]” Id.

at 59. Tax penalties thus appear to lack a historical

pedigree dating to the Founding. That, too, appears to

suggest that these penalties fall outside of the publicrights exception as articulated in Jarkesy.12

12 “Though Jarkesy did not expressly limit public rights to the

kinds recognized at the Founding, its analysis implied as much.”

Axalta, 144 F.4th at 483 (Bibas, J., concurring).

14

IV.

The IRC’s Tax Penalty Scheme Is Hard to

Square With Article III.

There may well be another related constitutional

defect with a statutory scheme authorizing the Tax

Court to adjudicate IRS-imposed tax penalties: to the

extent these monetary penalties implicate vested

private property rights falling outside of the publicrights exception as articulated in Jarkesy, the

Constitution requires an exercise of judicial Power a

non-Article III tribunal like the Tax Court cannot

constitutionally possess.13

Under the Constitution, “[t]he judicial Power”

“extend[s] to all Cases, in Law and Equity, arising

under this Constitution, [and] the Laws of the United

States[.]” U.S. Const. Art. III, § 2, cl. 1. Under the

original understanding, it “extended to ‘suit[s] at the

common law, or in equity, or admiralty.’” Oil States

Energy Servs., LLC v. Greene’s Energy Grp., LLC, 584

U.S. 325, 348 (2018) (Gorsuch, J., dissenting) (quoting

Murray’s Lessee, 59 U.S. (18 How.) at 284).

This Court “ha[s] repeatedly explained that

matters concerning private rights may not be removed

from Article III courts.” Jarkesy, 603 U.S. at 127

(citing Murray’s Lessee, 59 U.S. (18 How.) at 284;

Granfinanciera, 492 U.S. at 51–52; Stern v. Marshall,

564 U.S. 462, 484 (2011)). Instead, “an exercise of the

judicial power is required when the government wants

to act authoritatively upon core private rights that

13 “[T]here is only one public-rights test across both” Article III

and the Seventh Amendment. Axalta, 144 F.4th at 484 (Bibas,

J., concurring).

15

had vested in a particular individual.” Wellness Int’l

Network, Ltd. v. Sharif, 575 U.S. 665, 713 (2015)

(Thomas, J., dissenting) (cleaned up). This means that

“when private rights are at stake, full Article III

adjudication is likely required.” Axon, 598 U.S. at 198

(Thomas, J., concurring). That may be the case here.

If so, the Tax Court cannot provide that Article III

adjudication, as it is in a different branch of

government.14

V.

This Court Should Build On Jarkesy and

Repudiate Atlas Roofing.

This Court’s precedent “governing the public

rights exception have not always spoken in precise

terms” and “has not definitively explained the

distinction between public and private rights[.]”

Jarkesy, 603 U.S. at 130–31. Jarkesy likewise “d[id]

not claim to do so[.]” Id. at 131. “[T]he boundary

14 The Tax Court’s constitutional status is murky. See Freytag v.

Commissioner, 501 U.S. 868, 908–09 (1991) (Scalia, J.,

concurring in part, concurring in judgment). It is often described

as an “Article I court.” See, e.g., Curtin v. Commissioner, No.

32212-15, 2023 U.S. Tax Ct. LEXIS 3824, at *3 (T.C. Oct. 2,

2023). But it may be more accurate to describe it as an Article II

Executive-branch entity. See Kuretski v. Comm’r of IRS, 755 F.3d

929, 943 (D.C. Cir. 2014) (“[T]he Tax Court exercises its

authority as part of the Executive Branch.”); Aaron L. Nielson,

Christopher J. Walker & Melissa F. Wasserman, Saving Agency

Adjudication, 103 Tex. L. Rev. 1013, 1053 (2025). One thing

seems certain: the Tax Court is not an Article III court. See

Kuretski, 755 F.3d at 943. Therefore, it follows that the Tax

Court cannot possess or exercise the “judicial Power” the

Constitution exclusively reserves to Article III courts—any

attempt to do so would be void. See Murray’s Lessee, 59 U.S. (18

How.) at 275. But cf. Freytag, 501 U.S. at 890–91.

16

between private and public rights has proven

anything but easy to draw[.]” In re Renewable Energy

Dev. Corp., 792 F.3d at 1278. And as Judge Kethledge

has observed, “[t]he law in this area has a potluck

quality.” Waldman v. Stone, 698 F.3d 910, 918 (6th

Cir. 2012). That observation remains true today.

In Jarkesy, this Court took an important step to

return to constitutional first principles, making clear

that the so-called public-rights exception to Article III

and the Seventh Amendment is just that: a limited

exception to the Constitution’s promise that

Americans are entitled to a trial in an independent

court, subject to the jury-trial right. But Jarkesy’s

public-rights analysis sits uneasily with this Court’s

decision in Atlas Roofing—an outlier decision that

may well be the “high-water mark of the movement

toward agency adjudication.” Jarkesy, 603 U.S. at 157

(Gorsuch, J., concurring). At least when that

misguided decision is read broadly, “any time

Congress creates a cause of action enforced by the

government, Atlas Roofing presumes that it involves

a public right.” Axalta, 144 F.4th at 483 (Bibas, J.,

concurring). Atlas Roofing’s bespoke public-rights

analysis thus flips Jarkesy’s presumption in favor of

private rights on its head.

This makes a hash of this Court’s public-rights

doctrine, not to mention the Constitution’s demands.

As Judge Bibas has thoughtfully observed:

Atlas Roofing and its progeny created a

test for public rights that dragged the

doctrine far from the Constitution’s

original

meaning.

Jarkesy

then

announced a return to first principles

17

that put the law on sounder footing

theoretically—but it preserved a test for

public rights that directly conflicts with

those principles.15

Id. at 482 (Bibas, J., concurring). That is a

constitutional problem. And this doctrinal morass

should not be allowed to stand. The Court should

“take this accreted jumble and order it into a rule that

is coherent, consistent, and true to the Constitution’s

original safeguards.” Id. at 485 (Bibas, J., concurring).

This Petition is an opportunity to begin that process.

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

January 21, 2026

15 A possible explanation for this conflict is that the public-rights

doctrine has become “misshapen in recent years thanks to

seesawing battles between competing structuralist and

functionalist schools of thought” on the Court. In re Renewable

Energy Dev. Corp., 792 F.3d at 1278. This Court should clear up

this doctrinal confusion by repudiating the functionalist

approach exemplified by cases like Atlas Roofing, returning to

first principles, and enforcing the structuralist protections

enshrined in the Constitution.