Amicus Curiae Brief — Department of Labor, et al., Petitioners v. Sun Valley Orchards, LLC

No. 25-966

In the

Supreme Court of the United States

DEPARTMENT OF LABOR, ET AL.,

Petitioners,

v.

SUN VALLEY ORCHARDS, LLC,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF AMICI CURIAE OF THE NEW CIVIL

LIBERTIES ALLIANCE, AMERICANS FOR

PROSPERITY FOUNDATION, AND THE

BUCKEYE INSTITUTE IN SUPPORT OF

RESPONDENT

Margaret A. Little

Counsel of Record

Russell G. Ryan

Markham S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Dr., Ste. 300

Arlington, VA 22203

(202) 869-5210

Peggy.Little@NCLA.legal

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................... i

TABLE OF AUTHORITIES ........................................... iii

INTEREST OF AMICI CURIAE......................................1

SUMMARY OF THE ARGUMENT.................................4

ARGUMENT ......................................................................5

I. CONGRESS CANNOT RELOCATE JUDICIAL POWER

FROM FEDERAL COURTS TO EXECUTIVE

DEPARTMENTS AND AGENCIES ............................... 5

A. Congress Cannot Delegate a Power It

Lacks ............................................................ 5

B. Article III’s Vesting of Judicial Power in

the Courts Is Mandatory ............................. 7

C. Article III Authorizes Congress to

Locate Judicial Power Only in Inferior

Courts, Not in Administrative Agencies ..... 9

D. The Executive Is Vested with Only

Executive Power ......................................... 13

E. Judicial Power Cannot Be Subject to

Political Review .......................................... 14

II. THE “PUBLIC RIGHTS” EXCEPTION TO ARTICLE

III JURISDICTION IS INAPPLICABLE AND SHOULD

BE ABANDONED .................................................... 15

A. The Public-Rights Exception Is Atextual

.................................................................... 16

B. Converting Governmental Powers into

Governmental “Rights” Is Contrary to

the Framers’ Constitutional Design .......... 20

ii

III.THE COURT SHOULD EXPRESSLY OVERRULE

ATLAS ROOFING CO. V. OSHRC ........................... 22

CONCLUSION................................................................ 28

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Atlas Roofing Co. v. Occupational Safety and

Health Review Comm.,

430 U.S. 442 (1977) ........................................ 15, 22

Axalta Coating Sys. LLC v. FAA,

144 F.4th 467 (3d Cir. 2025) .........15, 21, 23, 24, 25

Axon Enter. v. FTC and

SEC v. Cochran,

598 U.S. 175 (2023) .......................19, 21, 24, 25, 26

Dept. of Transp. v. Ass’n of Am. R.Rs.,

575 U.S. 43 (2015) .................................................. 8

FCC v. AT&T, Inc.,

146 S. Ct. 1418 (2026) .......................................... 25

Freytag v. Commissioner,

501 U.S. 868 (1991) .............................................. 10

Gordon v. United States,

69 U.S. 561 (1864) ................................................ 14

Hayburn’s Case,

2 U.S. 408 (1792) .................................................. 13

Humphrey’s Ex'r v. United States,

295 U. S. 602 (1935) ............................................. 27

Impax Labs., Inc. v. FTC,

994 F.3d 484 (5th Cir. 2021) ................................ 27

In re Renewable Energy Dev. Corp.,

792 F.3d 1274 (10th Cir. 2015) ............................ 12

iv

Intuit, Inc. v. FTC,

170 F.4th 411 (5th Cir. 2026) ................... 10, 21, 22

Loper Bright Enterprises v. Raimondo and Relentless

v. Dep’t of Com.,

603 U.S. 369 (2024) .......................................... 9, 18

Lorenzo v. SEC,

872 F.3d 578 (D.C. Cir. 2017) .............................. 24

Manis v. U.S. Dep’t of Agric.,

796 F. Supp. 3d 178 (M.D.N.C. 2025) .................. 26

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................................. 8

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) .............................. 20

Meta Platforms, Inc. v. FTC,

723 F. Supp. 3d 64 (D.D.C. 2024) ........................ 26

Murray’s Lessee v. Hoboken Land & Imp.

Co.,

59 U.S. 272 (1855) .................................... 16, 17, 18

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

Grp., LLC,

584 U.S. 325 (2018) .......................................... 9, 21

Ortiz v. United States,

585 U.S. 427 (2018) .............................................. 11

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) .................................................. 6

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) ................................................ 8

SEC v. Jarkesy,

603 U.S. 109 (2024) ..... 10, 15, 16, 18, 21, 22, 23, 26

v

See City of Arlington v. FCC,

569 U.S. 290 (2013) .............................................. 13

Sessions v. Dimaya,

584 U.S. 148 (2018) .............................................. 19

Sligo Creek Ctr. v. U.S. HHS,

177 F.4th 556 (4th Cir. 2026) ............................... 26

Springer v. Gov’t of Philippine Islands,

277 U.S. 189 (1928) .............................................. 13

Stern v. Marshall,

564 U.S. 462 (2011) .............................................. 11

Tex. Tobacco Barn, L.L.C. v. U.S. HHS,

180 F.4th 229 (5th Cir. 2026) ............................... 26

Trump v. Slaughter,

No. 25-332, 2026 WL 1855612

(U.S. June 29, 2026) ....................................... 27, 28

Utica Packing Co. v. Block,

781 F.2d 71 (6th Cir. 1986) .................................. 27

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

575 U.S. 665 (2015) .............................................. 16

Williams v. Pennsylvania,

579 U.S. 1 (2016) .................................................. 12

Constitutional Provisions

U.S. CONST. art. I, § 1................................................. 8

U.S. CONST. art. I, § 8............................................... 10

U.S. CONST. art. II, § 1 ............................................. 8

U.S. CONST. art. III, § 1 .......................................... 7, 9

U.S. CONST. art. III, § 1 ........................................... 8

U.S. CONST. art. III, § 2, cl. 1 ..................................... 9

vi

Statutes

15 U.S.C. § 45(c) ................................................. 26, 27

15 U.S.C. § 78y(a)(4) ................................................ 27

Other Authorities

2 St. George Tucker,

Law Lectures (1795) ............................................. 23

An Act for the Regulating of the Privy Council and

for Taking Away the Court Commonly Called

the Star Chamber, 16 Car. c. 10 (1641) ............... 23

Caleb Nelson,

Adjudication in the Political Branches,

107 Colum. L. Rev. 559 (2007) ............................. 22

Caleb Nelson,

Vested Rights, “Franchises,” and The

Separation of Powers,

169 U. Pa. L. Rev. 1429 (2021) ....................... 16, 18

Evan D. Bernick,

Is Judicial Deference to Agency Fact-Finding

Unlawful?,

16 Geo. J. L. & Pub. Pol’y 27 (2018) .................... 25

Gary Lawson,

The Rise and Rise of the Administrative State,

107 Harv. L. Rev. 1231 (1994) ............................. 25

Jennifer Mascott,

Constitutionally Conforming Agency Adjudication,

2 Loy. U. Chi. J. Regul. Compliance 22 (2017) ... 19,

25

Kent Barnett,

Resolving the ALJ Quandary, 66 Vand. L. Rev.

797 (2013) ............................................................. 12

vii

Michael Showalter,

Defining the Public-Rights Exception After

Jarkesy,

23 Geo. J. L. Pub. Pol’y 361 (2025) ...................... 19

Nathan S. Chapman & Michael W. McConnell,

Due Process as Separation of Powers,

121 Yale L.J. 1672 (2012) ..................................... 23

Philip Hamburger,

Is Administrative Law Unlawful?

(2014) .............................................16, 17, 18, 20, 24

Philip Hamburger,

Nondelegation Blues,

91 Geo. Wash. L. Rev. 1083 (2023) ............ 6, 10, 14

Philip Hamburger,

The Inversion of Rights and Power,

63 Buff. L. Rev. 731 (2015) ............................. 16, 21

Russell G. Ryan,

Uncivil Procedure: The Need for Heightened Due

Process Protection in SEC Enforcement

Prosecutions,

Crim. Just., Summer 2023, at 12 ......................... 20

THE FEDERALIST No. 78,

(Alexander Hamilton) (Cooke ed. 1961) .............. 12

1

INTEREST OF AMICI CURIAE1

The New Civil Liberties Alliance (NCLA)

is a nonpartisan, nonprofit civil rights organization

and public-interest law firm devoted to defending

constitutional freedoms from the administrative

state’s depredations. Professor Philip Hamburger

founded NCLA to challenge multiple constitutional

defects in the modern administrative state through

original litigation, amicus curiae briefs, and other

advocacy.

The “civil liberties” of the organization’s name

include rights at least as old as the U.S. Constitution

itself, such as the right to a jury trial, to due process

of law, and to have laws made by the nation’s elected

legislators through constitutionally prescribed

channels (i.e., the right to self-government). These

selfsame civil rights are also very contemporary—and

in dire need of renewed vindication—precisely

because Congress, executive branch officials,

administrative agencies, and even some courts have

neglected them for so long.

NCLA aims to defend civil liberties—primarily

by asserting constitutional constraints against the

modern administrative state. Although Americans

still enjoy the shell of their Republic, a very different

sort of government has developed within it—a type

that the Constitution was designed to prevent. This

1 Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for a party authored this brief in whole or in part; and

that no person or entity, other than amici and its counsel, made

a monetary contribution intended to fund the preparation and

submission of this brief.

2

unconstitutional state within the Constitution’s

United States is the focus of NCLA’s concern.

NCLA is especially concerned by the relocation

of judicial power from courts—in which Article III

solely vests such power—to executive departments

and administrative agencies. Congress lacks any

judicial power whatsoever, so it cannot delegate that

power to any branch of government. The judicial

power of the United States resides in the federal

courts by the Constitution’s very terms, and it cannot

be shared with the other branches of government—

especially not with the prosecutor.

Americans for Prosperity Foundation

(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

private rights, the Constitution requires that it do so

in a neutral Article III court, subject to the Seventh

Amendment jury-trial right. In this country, the

prosecuting agency is not allowed to be the judge and

jury of its own cause. That is the antithesis of the

most basic requirements of due process: a fair trial in

a fair forum. But that is exactly what the inhouse

administrative enforcement scheme at issue here—

and a host of others—purports to allow. That

unconstitutional arrangement—which flows from this

3

Court’s atextual and ahistorical “public rights”

exception—should not stand.

To be clear, AFPF takes no position on whether

the monetary penalties and backpay at issue are

warranted. But the Respondent was constitutionally

entitled to have those factual and legal

determinations made in federal court with a right to

a jury trial. At its core, that is all this case is about

and is AFPF’s sole interest, here. More broadly, AFPF

urges this Court to critically examine the origin of its

“public rights” exception, repudiate Atlas Roofing,

and return to constitutional first principles by

enforcing Article III’s promise that, at least where

private rights are at stake, “all Cases, in Law and

Equity, arising under” federal law must be

adjudicated in court.

The Buckeye Institute was founded in 1989

as an independent research and educational

institution—a think tank—to formulate and promote

free-market policy in the states. The Buckeye

Institute accomplishes its mission by performing

timely and reliable research on key issues, compiling

and synthesizing data, formulating free-market

policies, and marketing those policy solutions for

implementation in Ohio and replication across the

country. The Buckeye Institute also files lawsuits and

submits amicus briefs to fulfill its mission. The

Buckeye Institute is a nonpartisan, nonprofit, tax

exempt organization, as defined by I.R.C. Section

501(c)(3).

4

SUMMARY OF THE ARGUMENT

Congress cannot delegate judicial power to the

Executive Branch, as it does not belong to Congress.

The Constitution vests judicial power in Article III

courts, and its location there is mandatory. Casting

the inquiry in terms of “delegation” doctrine misses

the constitutional point altogether. Congress lacks

judicial power, and it may only lawfully locate such

power in inferior Article III courts.

By the same token, the Executive Branch is

confined to the exercise of executive power. No

executive officer can constitutionally exercise the

judicial power of the United States. Furthermore,

judicial power cannot be shared with the other

branches, nor be subject to political review. Yet the

Department of Labor (“DOL”) adjudicatory regime

challenged in this case is premised on such review as

an integral part of its in-house adjudication scheme.

By shifting law enforcement cases into administrative

tribunals, agencies transform Americans’ basic civil

liberties into mere options from which the

government can escape by taking the administrative

path.

Finally, the misnamed and inscrutable “public

rights” exception confuses government power with

government rights and is alien to American

constitutionalism. The exception is an atextual

recasting of our constitutional order and should be

discarded. If the Court does not jettison the prevailing

and much criticized hash of this exception entirely, it

should at least explicitly overrule Atlas Roofing Co. v.

Occupational Safety and Health Review Commission.

A candid and long-overdue overruling should

5

reiterate with clarity and emphasis that the exception

applies exclusively where the Government is

disbursing public privileges, benefits, assets, or other

largesse from the public fisc to which the recipient

would otherwise have no pre-existing entitlement and

in which the recipient has no vested property interest.

Thus, the exception could never empower the

executive branch to adjudicate cases, like this one,

where the Government threatens to impose punitive

sanctions against private citizens or businesses and

brand them as lawbreakers.

ARGUMENT

I.

CONGRESS CANNOT RELOCATE JUDICIAL

POWER FROM FEDERAL COURTS TO EXECUTIVE

DEPARTMENTS AND AGENCIES

Relocating judicial power from Article III

courts to executive departments and agencies, even

with Congress’s authorization, encounters at least

five obstacles. Separately, each would suffice to hold

DOL’s administrative exercise of judicial power

unconstitutional. Together, the five objections are

insuperable.

A. Congress Cannot Delegate a Power It

Lacks

Although it is often assumed that Congress

delegates power to executive departments and

agencies, congressional delegation can neither

explain nor justify executive exercise of judicial

power, because the Constitution gives Congress only

legislative powers. Congress cannot delegate a power

it does not have, so it cannot delegate judicial power.

6

See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 132

(2015) (Thomas, J., concurring in the judgment)

(“Lacking the [judicial] power itself, … [Congress]

cannot [delegate] that power to an agency.”). Judicial

power is exclusively vested in Article III; therefore,

the question must be decided in terms of vesting, not

“delegation.”

The vesting language separately appearing at

the beginning of Articles I, II and III properly should

be the focus of the Court’s decision in this case

because it avoids the inaccuracy of describing

congressional transfers of power as mere

“delegations.” A delegated power is one that can be

reclaimed by the delegator, such as when an

Executive Officer delegates power to a subordinate

which she can recall at her own discretion. Similarly,

when Congress delegates authority to the

Congressional Budget Office, it has full discretion to

retrieve any of the delegated authority. But when

Congress enacts a law authorizing the Executive to

exercise legislative power—or purporting to authorize

it to exercise judicial—power,2 Congress cannot

retrieve that power easily, as it may have to overcome

a Presidential veto, something not always (or even

usually)

possible.

See

Philip

Hamburger,

Nondelegation Blues, 91 Geo. Wash. L. Rev. 1083,

1086 (2023) (footnote omitted) (“At stake is not merely

another judicial doctrine. The nondelegation doctrine

is what justifies the shift of regulatory power from

2 As Sun Valley persuasively argues, it is questionable whether

Congress has indeed statutorily authorized DOL in this case.

7

Congress to agencies. It thus is a foundation stone of

the administrative state.”).

The failure of delegation’s analytical

framework is especially severe when Congress—

vested with only legislative power—purports to shift

judicial power from the courts to executive

departments and agencies. Not having that power in

the first place, Congress cannot lawfully delegate it.

The Constitution speaks in terms of what power is

vested. This Court should put aside any illusory

inquiry about delegation of power and ask instead

whether Congress has unconstitutionally divested the

courts of their judicial power.

Once the analysis focuses on the language of

the Constitution—as it must—it becomes clear that

Congress cannot delegate a power it does not have.

One cannot intelligibly analyze the constitutionality

of the transfer of judicial power to DOL in terms of

delegation, because the Constitution places the

judicial power of the United States exclusively and

squarely in Article III. It thus becomes imperative to

focus on vesting—and divesting—to decide this case.

B. Article III’s Vesting of Judicial Power in

the Courts Is Mandatory

Article III of the Constitution provides: “The

judicial power of the United States, shall be vested”

in the courts. U.S. CONST. art. III, § 1. This phrase is

significant.

Had Article III recited that the judicial power

“is hereby vested” in the courts, it could be argued that

that power, like title to land, could be conveyed

8

without any limitation on its subsequent transfer.

Courts, leaving aside Congress, could plausibly claim

a freedom to shift their judicial power beyond the

courts.

Tellingly, however, Article III avoided this

familiar language of conveyancing, instead saying

that the judicial power “shall be vested.” It thereby

made clear that the location of that power was

mandatory. The text of the Constitution specifies not

merely that powers are “vested” and therefore nontransferable, but where they must be placed. See

Dept. of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 67

(2015) (Thomas, J., concurring in the judgment). The

legislative power shall be in Congress, U.S. CONST.

art. I, § 1, the executive power shall be in the

President, id. art. II, § 1, and the judicial power shall

be in the courts, id. art. III, § 1. “These grants are

exclusive.” Ass’n of Am. R.Rs., 575 U.S. at 67

(Thomas, J., concurring in the judgment).

The principle that the Constitution

unambiguously vests judicial power in courts

resounds over centuries of case law, from Marbury v.

Madison’s recognition of this demarcation—it is

“emphatically the province and duty of the judicial

department to say what the law is[,]” 5 U.S. (1

Cranch) 137, 177 (1803)—to cases such as Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211 (1995), where

the Court held that § 27A of the Securities Exchange

Act of 1934 violated the separation of powers, id. at

218 (“Congress cannot vest review of the decisions of

Article III courts in officials of the Executive

Branch.”). If there were any doubt, it was removed

two years ago by Loper Bright Enterprises v.

Raimondo and Relentless v. Dep’t of Com., 603 U.S.

9

369, 38586 (2024) (Framers intended judges to

decide cases independent of influence from political

branches, and while views of executive officials could

inform judicial decisions they could not supersede

them).

Nor should this mandatory assignment of

powers come as a surprise. The Constitution did not

vest its powers in separate branches of government

merely as an initial distribution of cards, to be played

and transferred as soon as the game began.

C. Article III Authorizes Congress to Locate

Judicial Power Only in Inferior Courts,

Not in Administrative Agencies

Article III begins: “The judicial Power of the

United States shall be vested in one supreme Court,

and in such inferior Courts as the Congress may from

time to time ordain and establish.” U.S. CONST. art.

III, § 1. This judicial vesting clause stands apart from

the other vesting clauses. The other clauses fully

specify the mandatory locations of their powers: the

legislative powers in Congress and executive power in

the President. In contrast, Article III allows Congress

to designate the location of part of the judicial

power—but only in “inferior courts,” not other bodies.

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

Grp., LLC, 584 U.S. 325, 333–34 (2018). Congress

therefore cannot place the judicial power in the DOL

or any other executive department or agency.3 See

3 “The judicial Power” Article III vests in courts alone “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. Its protections thus apply regardless of whether the

10

SEC v. Jarkesy, 603 U.S. 109, 126 (2024) (the judicial

power “cannot be shared with the other branches”);

Hamburger, Nondelegation Blues, 91 Geo. Wash. L.

Rev. at 1174 (judicial vesting clause “[o]bviously” does

not textually let “some of the judicial power be shared

with Congress or the executive”).

To be sure, Article I empowers Congress “[t]o

constitute Tribunals inferior to the Supreme Court[,]”

U.S. CONST. art. I, § 8, and it may be thought that

with this power, Congress could place the judicial

power in “tribunals,” such as the adjudication

machinery of the DOL, that are not inferior courts.

But this would be to confuse the courts, which exercise

the judicial power of the United States, with the host

of tribunals that do not exercise that judicial power.

See Freytag v. Commissioner, 501 U.S. 868, 902 (1991)

(Scalia, J., concurring in part, concurring in the

judgment) (“[T]his power plainly relates to the

inferior Courts provided for in Article III, § 1; it has

never been relied on for establishment of any other

tribunals.”). Article I’s Tribunal Clause gives

Congress the power to constitute a range of tribunals,

including the inferior federal courts exercising the

judicial power of the United States, but also lesser

tribunals, such as territorial and District of Columbia

courts, which exercise the judicial power,

respectively, of the territories and that district.

But no matter what kind of non-judicial

tribunals Congress might establish, Article III is clear

government is seeking “legal” relief implicating the Seventh

Amendment or equitable relief. See, e.g., Intuit, Inc. v. FTC, 170

F.4th 411, 420, 422–23 (5th Cir. 2026).

11

that the judicial power of the United States “shall be

vested” in the courts, not in those other sorts of

tribunals. So, even with the power to constitute

tribunals, Congress cannot locate the judicial power

of the United States in bodies that are not inferior

Article III courts, such as executive departments and

agencies.4

Whatever the DOL is, it is not an inferior court.

The Constitution does not say that judicial power

“shall be vested” in the Supreme Court and such

inferior courts and other tribunals as Congress may

ordain and establish. The judicial vesting clause thus

spells out a double limit: the judicial power must be

in the courts, and when Congress distributes the

judicial power not belonging to the Supreme Court, it

cannot place that power in any tribunal other than an

inferior Article III court.

The Constitution’s restriction of judicial power

to the courts is essential. In Stern v. Marshall, the

Supreme Court stated that “Article III could neither

serve its purpose … nor preserve the integrity of

judicial decisionmaking if the other branches of the

Federal Government could confer the Government’s

‘judicial power’ on entities outside Article III.” 564

U.S. 462, 484 (2011); see also In re Renewable Energy

As Justice Thomas has observed, “when administrative

agencies adjudicate private rights … they are unconstitutionally

exercising ‘[t]he judicial Power of the United States,’ as agencies

are not Article III courts and do not ‘enjoy a unique, textually

based’ carve-out from the Vesting Clause of Article III.” Ortiz v.

United States, 585 U.S. 427, 462–63 (2018) (Thomas, J.,

concurring).

4

12

Dev. Corp., 792 F.3d 1274, 1277–78 (10th Cir. 2015)

(Gorsuch, J.). Congress simply cannot shift judicial

power from one branch to another—especially not to

the prosecutor!5

That danger was expressly articulated at the

Founding. “[T]here is no liberty, if the power of

judging be not separated from the legislative and

executive powers.” THE FEDERALIST No. 78, at 523

(Alexander Hamilton) (Cooke ed. 1961). Far from

being merely an eighteenth-century concern, this

danger is alive at the DOL and other executive

departments and agencies, where ALJs must worry

that their superior executive officers are looking over

their shoulders and can alter their decisions, adjust

their salaries, and even set in motion their

termination. Cf. Kent Barnett, Resolving the ALJ

Quandary, 66 Vand. L. Rev. 797, 801 (2013) (noting

that “increasing presidential control over ALJs would

create

impartiality

concerns”).

Indeed,

the

Declaration of Independence assailed this very evil—

objecting to the Crown’s making “Judges dependent

on his Will alone, for the tenure of their offices, and

the amount and payment of their salaries.” Decl. of

Indep. ¶ 11 (1776).

When it is recognized that the judicial power

mandatorily “shall be vested” in the courts, and that

Congress may distribute that power only to inferior

courts, the constitutional failing of administrative

judging comes into sharp focus. The exclusive vesting

Cf. Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (“[A]n

unconstitutional potential for bias exists when the same person

serves as both accuser and adjudicator in a case.”).

5

13

of powers cannot be undone, even by Congress,

because that would allow executive officials to

function as prosecutors, judges and juries, something

the Constitution emphatically prohibited.

D. The Executive Is Vested with Only

Executive Power

Article II vests only executive power in the

President. See City of Arlington v. FCC, 569 U.S. 290,

304 n.4 (2013). So, executive departments and

agencies simply cannot exercise judicial power. See

Springer v. Gov’t of Philippine Islands, 277 U.S. 189,

201–02 (1928).

For a branch of government to exercise a power

not constitutionally vested in it is to revive the sin

long ago repudiated in Hayburn’s Case, 2 U.S. 408

(1792). That case—actually a series of judicial protests dating from the earliest days of the Republic—

centered on the courts’ refusal to exercise non-judicial

power. For example, the Circuit Court for the District

of Pennsylvania said that “the business directed by

this act is not of a judicial nature. It forms no part of

the power vested by the Constitution in the courts of

the United States; the circuit court must, consequently, have proceeded without constitutional authority.” Id. at 410 (1792) (citing C.C.D. Pa.: letter

April 18, 1792).

This principle in Hayburn’s Case did not concern just the courts but applied equally to all of the

branches. No branch could exercise a type of power

other than that vested in it by the Constitution. As

put by the Circuit Court for the District of North Carolina, “the legislative, executive[,] and judicial

14

departments are each formed in a separate and independent manner,” and “the ultimate basis of each is

the [C]onstitution only, within the limits of which

each department can alone justify any act of authority.” Id. at 410 (citing C.C.D.N.C.: letter June 8, 1792).

Executive departments and agencies, being lodged in

the Executive Branch, cannot exercise any power that

is not executive.

E. Judicial Power Cannot Be Subject to

Political Review

Another conclusion of Hayburn’s Case was that

court decisions could not be reviewable by the

Executive Branch or Congress. See Hamburger,

Nondelegation Blues, 91 Geo. Wash. L. Rev. at 1111

& n.129. Other cases across the centuries have echoed

this essential point—notably Gordon v. United States,

69 U.S. 561 (1864) (Supreme Court lacked jurisdiction

to hear appeal from Court of Claims because, at the

time (but subsequently amended), Court of Claims

decisions were subject to review by the Secretary of

the Treasury and Congress and thus were not

exercises of judicial power).

Here, of course, judicial power has been

displaced from the courts to the Executive Branch. All

the same, the above-cited case law holds more broadly

that judicial power cannot be reviewable by political

power. That is exactly what happens at the DOL,

because the decisions of its ALJs are re-examinable

by the Secretary of Labor. If judicial power really

could be placed in ALJs—it cannot—then it could not

be reviewable by non-judicial political commissioners.

* * *

15

The DOL’s exercise of judicial power is

therefore inconsistent with the text of the

Constitution on five separate grounds. Any one of

them renders DOL’s judicial power unconstitutional;

taken together, they doom DOL’s administrative

adjudication.

II.

THE “PUBLIC RIGHTS” EXCEPTION TO

ARTICLE III JURISDICTION IS INAPPLICABLE

AND SHOULD BE ABANDONED

In recent decades, the Court has frequently

referred to a “public rights” exception when

considering Article III jurisdiction and Seventh

Amendment jury-trial claims.6 See, e.g., Jarkesy, 603

U.S. at 127–40 (public-rights exception inapplicable

to SEC penalty claims based on securities fraud);

Atlas Roofing Co. v. Occupational Safety and Health

Review Comm., 430 U.S. 442, 455 (1977) (stating that

“when Congress creates new statutory ‘public rights,’

it may assign their adjudication to an administrative

agency with which a jury trial would be incompatible,

without violating the Seventh Amendment … .”).

Amici urge the Court to re-examine its application of

this exception—beginning by abandoning use of the

term “public rights,” which does not accurately

describe the Government’s power in this case or

Although Article III’s promise of a trial de novo in an

independent court sweeps more broadly than the Seventh

Amendment jury-trial right, “there is only one public-rights test

across both provisions[.]” Axalta Coating Sys. LLC v. FAA, 144

F.4th 467, 484 (3d Cir. 2025) (Bibas, J., concurring).

6

16

others, and tends to mislead judges and lawyers

alike.7

A. The Public-Rights Exception Is Atextual

As this Court recognized in Jarkesy, the publicrights exception “has no textual basis in the

Constitution.” 603 U.S. at 131. Where did it come

from? The concept of the executive’s “public rights”

derives from Roman law, not English law, see Philip

Hamburger, The Inversion of Rights and Power, 63

Buff. L. Rev. 731, 825 (2015), and did not appear in

this Court’s decisions until the mid-19th century, see

Murray’s Lessee v. Hoboken Land & Imp. Co., 59 U.S.

272, 284 (1855); see also Caleb Nelson, Vested Rights,

“Franchises,” and The Separation of Powers, 169 U.

Pa. L. Rev. 1429, 1436 n.38 (2021). Moreover,

Murray’s Lessee, “the putative source of the public

rights doctrine itself,” Wellness Int’l Network, Ltd. v.

Sharif, 575 U.S. 665, 715–16 (2015) (Thomas, J.,

dissenting), used the term in a narrow context largely

unrelated to its 20th-century usage, see Philip

Hamburger, Is Administrative Law Unlawful? 247–

48 note m (2014). In Murray’s Lessee, “public rights”

was simply shorthand for “the executive’s traditional

power under law”; the Court was not referencing or

Throughout its opening brief, the Government confuses

matters further by semantically elevating what “is, after all, an

exception,” Jarkesy, 603 U.S. at 131, to a “doctrine.” The brief

references this mythical “doctrine” more than 30 times, not once

acknowledging Jarkesy’s emphatic teaching that it is in fact a

limited exception. The Court should not be fooled by this

linguistic legerdemain.

7

17

suggesting the existence of “any executive power of

issuing binding legislative or judicial edicts.” Id.

Murray’s Lessee involved an effort by the

federal government to collect customs revenues from

Swartwout, the former collector of customs for the

port of New York. An audit of his books showed that

he had collected $1.4 million in customs taxes that

were never forwarded to the federal treasury. An 1820

statute authorized Treasury Department officials to

conduct the audit, place a lien on Swartwout’s

property in the amount of the unremitted taxes, and

then issue a “distress warrant” authorizing sale of the

property. 59 U.S. at 274–75.

At issue before the Court was whether the

actions of Treasury officials constituted “the exercise

of the judicial power of the United States.” If so, “the

proceeding was void,” because (as the Court

recognized) Article III of the Constitution provides

that only the judicial branch of government may

exercise that judicial power. Id. at 275.

The Court determined that the Treasury

officials acted properly because they were not

exercising judicial power—but only after undertaking

a lengthy analysis of the history of government efforts

to collect tax revenue from absconding tax officials.

The Court concluded that throughout English and

American history, taking steps to collect all tax

revenues that a customs official failed to properly

forward to the public treasury had been considered an

executive function and never a part of the judicial

power. Id. at 276–82.

18

The Court’s holding turned on the special

status of tax collectors, who could collect unpaid taxes

without going to court, not a broader right of

executive officials to collect funds extra-judicially, let

alone to adjudicate extra-judicial enforcement

proceedings. The court’s sole reference to “public

rights” came at the very end of the opinion, in

response to an argument that Congress had converted

the “distress warrant” proceeding into an exercise of

judicial power when it granted the debtor a private

right of action to challenge the proceeding. Id. at 282–

84. The Court rejected that argument, explaining in

dictum that the government’s right to maintain

summary proceedings against its tax collector was a

“public right” that was unaffected by Congress’s

discretionary decision to permit subsequent judicial

review.8 Id. at 284.

The absence of any constitutional text or basis

to support the public-rights exception strongly

supports either abandoning it altogether or at least

confining it to the limited spaces it already occupies.

Cf. Jarkesy, 603 U.S. at 152–53 (Gorsuch, J.,

concurring) (“public rights are a narrow class” with “a

serious and unbroken historical pedigree”). At most,

This stray “public rights” remark in Murray’s Lessee would

later take on a life of its own to “become a springboard for claims

of administrative power, and it therefore is worth examining it,

to understand where it came from[.]” Hamburger, Is

Administrative Law Unlawful?, supra, 247–48 note m. Cf. Loper

Bright, 603 U.S. at 441–43 (Gorsuch, J., concurring) (examining

origin of Chevron). Tellingly, “references to ‘public rights cases’

did not become popular among either judges or commentators

until modern times.” Nelson, Vested Rights, “Franchises,” and

The Separation of Powers, 169 U. Pa. L. Rev. at 1436-37 n.38.

8

19

extra-judicial executive adjudication should be

permitted only where the Government is dispensing

or reclaiming public privileges, benefits, assets, or

other largesse from the public fisc to which the

recipient would otherwise have no pre-existing

entitlement and in which the recipient has no vested

property interest. See generally Michael Showalter,

Defining the Public-Rights Exception After Jarkesy,

23 Geo. J. L. Pub. Pol’y 361, 363–64 (2025); Br. of

Amicus Curiae Professor Ilan Wurman in Support of

Respondent at 5–6 (July 13, 2026). Adjudications that

threaten to make binding determinations and deprive

private citizens or businesses of their right to life,

liberty, or property quintessentially involve private

rights, not public rights. See Axon Enter. v. FTC and

SEC v. Cochran, 598 U.S. 175, 198 (2023)

(“Axon/Cochran”) (Thomas, J., concurring) (as

originally understood, private rights include “life,

liberty,

and

property”);

Jennifer

Mascott,

Constitutionally Conforming Agency Adjudication, 2

Loy. U. Chi. J. Reg. Compliance 22, 45 (2017).

Under

no

circumstances

should

law

enforcement cases like this one, in which the

Government seeks to punish private parties and

brand them lawbreakers, ever be adjudicated outside

Article III courts. Such cases are more akin to

criminal prosecutions than to decisions about

entitlement to government-bestowed privileges or

welfare benefits. See, e.g., Sessions v. Dimaya, 584

U.S. 148, 184 (2018) (Gorsuch, J., concurring in part

and concurring in the judgment) (many “civil”

penalties today “are routinely imposed and are

routinely graver than those associated with

misdemeanor crimes—and often harsher than the

punishment

for

felonies”);

Hamburger,

Is

20

Administrative Law Unlawful?, supra, at 246 (“most

administrative proceedings” in which the government

sues in its sovereign capacity are “criminal in

nature”). If anything, therefore, the Court would do

well to consider whether these quasi-criminal

prosecutions not only must be adjudicated in Article

III courts (with jury trials if the Seventh Amendment

applies) but also deserve the full panoply of

protections guaranteed by the Sixth Amendment. See

Russell G. Ryan, Uncivil Procedure: The Need for

Heightened Due Process Protection in SEC

Enforcement Prosecutions, Crim. Just., Summer 2023,

at 12, 12–13 (suggesting that courts dispense with the

fiction

that

punitive

SEC

law-enforcement

prosecutions seeking harsh penalties are “civil”

rather than criminal cases).

B. Converting Governmental Powers into

Governmental “Rights” Is Contrary to

the Framers’ Constitutional Design

Although the “public rights” moniker is often

used to describe “rights” belonging to the federal

government, the federal government is not normally

thought of as possessing any rights whatsoever in

relation to the people. The government possesses

limited powers granted to it in the U.S. Constitution,

see Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304,

326 (1816), and the governed possess constitutional

rights (notably those enumerated in the Bill of

Rights), which they may assert as limits on

government power. The government often acts in

pursuit of what it deems the public interest; but in

doing so, it is exercising its own powers, not in any

sense its own rights or even those of the citizens it

21

hopes will benefit from its actions. See Hamburger,

The Inversion of Rights and Power, supra, at 757–62.

Second, the Court’s frequent invocation of the

term has done little or nothing to flesh out its

meaning. As the Court recently conceded with

considerable

understatement,

“Our

opinions

governing the public rights exception have not always

spoken in precise terms.” Jarkesy, 603 U.S. at 130;

accord Oil States, 584 U.S. at 334 (“This Court has

not definitively explained the distinction between

public and private rights … and its precedents

applying the public-rights doctrine have not been

entirely consistent.” (cleaned up)). Even after

Jarkesy, lower courts continue to harbor wildly

different views regarding what the remaining

remnants of the exception still cover. Compare, e.g.,

Axalta, 144 F.4th at 477 (exception applied to FAA

penalty adjudication), with Intuit, 170 F.4th at 418

(exception not applicable to FTC cease-and-desist

adjudication).

Amici urge the Court to abandon its

nomenclature of “public rights” and, instead, speak

about matters in terms of whether they are exercises

of executive or judicial power.9 The latter may be

performed only by real Article III courts.

9 “[F]actfinding” and “deciding questions of law” “are at the core

of judicial power” and must be reserved to courts alone.

Axon/Cochran, 598 U.S. at 203 (Thomas, J., concurring) (citing

U.S. CONST. art. III, § 2, cl. 2)).

22

III.

THE COURT SHOULD EXPRESSLY OVERRULE

ATLAS ROOFING CO. V. OSHRC

In Jarkesy, this Court appropriately criticized

and distinguished Atlas Roofing. See 603 U.S. at 136–

40 & n.4. The Court expressly acknowledged that

“Atlas Roofing represents a departure from our legal

traditions” and that scholars have mostly either

criticized or “simply ignored the case.” Id. at 138 n.4.

The Court further noted that the Justice who

authored Atlas Roofing later suggested it may have

already been overruled. Id. at 136 n.3 (quoting

Granfinanciera S.A. v. Nordberg, 492 U.S. 33, 71 n.1,

79 (1989) (White, J., dissenting)). Jarkesy thus “cast

doubt on whether Atlas Roofing remains good law.”

Intuit, 170 F.4th at 417. For many reasons, the time

has come for the Court to explicitly overrule this

egregiously mistaken decision. Cf. Resp. Br. 43–44.

To begin, Atlas Roofing purported to rely

heavily on Murray’s Lessee. See 430 U.S. at 450–51 &

n.8, 456–57. But as previously noted, the “public

rights” briefly alluded to in Murray’s Lessee bear no

relationship to the broadly reimagined “public rights”

exception endorsed by Atlas Roofing. See Hamburger,

The Inversion of Rights and Power, supra, at 760–62;

Caleb Nelson, Adjudication in the Political Branches,

107 Colum. L. Rev. 559, 604 n.189 (2007) (suggesting

Atlas Roofing overread Murray’s Lessee). Moreover,

Jarkesy’s logic is difficult to square with Atlas

Roofing. Under Jarkesy, “[e]ven with respect to

matters that arguably fall within the scope of the

‘public rights’ doctrine, the presumption is in favor of

23

Article III courts.” 603 U.S. at 132.10 Atlas Roofing

flips that presumption on its head, “default[ing] to

public rights, untethered from history.” See Axalta,

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

Atlas Roofing also failed to take account of the

Fifth Amendment right to due process of law. Since

the Middle Ages, the core of due process has been the

right to be held accountable only in a court. See

Nathan S. Chapman & Michael W. McConnell, Due

Process as Separation of Powers, 121 Yale L.J. 1672,

1679–80 (2012). The 1641 Act of Parliament

abolishing the Star Chamber recited the principle,

first stated in 1368, that “No Man be put to answer

without presentment … by due Process and Writ

Original according to the old Law of the Land.” An Act

for the Regulating of the Privy Council and for Taking

Away the Court Commonly Called the Star Chamber,

16 Car. c. 10 (1641). Likewise, under our Constitution,

due process of law means the right to be held to

account only in the Courts. See Jarkesy, 603 U.S. at

150 (Gorsuch, J., concurring) (“due process of law

generally implied and included a judge, regular

allegations, opportunity to answer, and a trial

according to some settled course of judicial

proceedings” (cleaned up) (quoting Murray’s Lessee,

59 U.S. (18 How.) at 280)); 2 St. George Tucker, Law

Lectures, at 4 (1795) (under the Fifth Amendment,

“[d]ue process of law must then be had before a

judicial court, or a judicial magistrate”); Hamburger,

10 “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).

24

Is Administrative Law Unlawful?, supra, at 499 (“due

process of law” means “judicial decisions in accord

with the law, in the courts of law, according to their

traditional procedures”).

When this Court in Atlas Roofing contorted the

public-rights exception to reject a Seventh

Amendment jury-trial challenge, it denied both the

company’s due-process right to be heard in an

independent court and its right to a jury trial. Cf.

Axon/Cochran, 598 U.S. at 202 (Thomas, J.,

concurring) (suggesting appellate review model “may

violate due process by empowering entities that are

not courts of competent jurisdiction to deprive citizens

of core private rights”); Lorenzo v. SEC, 872 F.3d 578,

602 (D.C. Cir. 2017) (Kavanaugh, J., dissenting)

(noting this deferential review “is in some tension

with Article III of the Constitution, the Due Process

Clause of the Fifth Amendment, and the Seventh

Amendment”). By skirting independent judges and

juries, Atlas Roofing also enabled executive

departments and agencies to find facts and required

judges to defer to an administrative record assembled

by the prosecuting party—or, at best, by an ALJ

employed by that party. This deference to one side’s

facts

(sometimes

denoted

“fact

deference”)

institutionalized systematic judicial bias in violation

of the due process of law. See Hamburger, Is

Administrative Law Unlawful?, supra, at 317–21.

Nor can Atlas Roofing be squared with Article

III’s demands. To begin, “Article III vests ‘all Cases’

within the federal judicial power in independent

courts. That phrasing is absolute, making an

exception for any novel action far harder to defend.”

Axalta, 144 F.4th at 484 (Bibas, J., concurring)

25

(citations omitted) (quoting U.S. Const. art. III, § 2).

And in cases where core private rights are at stake,

deference to administrative factfinding “effectively

divests the courts of a key component of judicial

power—and therefore violates Article III.” Evan D.

Bernick, Is Judicial Deference to Agency Fact-Finding

Unlawful?, 16 Geo. J. L. & Pub. Pol’y 27, 46 (2018);

see Mascott, Constitutionally Conforming Agency

Adjudication, supra, at 25. “It is no answer that an

Article III court may eventually review the agency

order and its factual findings under a deferential

standard of review.” Axon/Cochran, 598 U.S. at 202–

03 (Thomas, J., concurring). To the contrary, “Article

III requires de novo review, of both fact and law.”

Gary Lawson, The Rise and Rise of the Administrative

State, 107 Harv. L. Rev. 1231, 1248 (1994). Simply

put, “[w]hen the Federal Government seeks to deprive

a person of property, it must go through an Article III

court.” FCC v. AT&T, Inc., 146 S. Ct. 1418, 1433

(2026) (Thomas, J., dissenting) (citation omitted).

Despite Atlas Roofing’s many deficiencies,

including its failure to adhere to Article III and the

Fifth and Seventh Amendments, it continues to lead

federal courts throughout the country to allow extrajudicial administrative proceedings that plainly

violate Article III and deny due-process and jury-trial

rights under any fair reading of Jarkesy. Many of

these cases have expressly noted that they remain

bound by Atlas Roofing—precisely because Jarkesy

stopped a few inches short of overruling it, leaving

lower courts no choice but to follow it. See, e.g., Axalta,

144 F.4th at 475–76; id. at 482 (Bibas, J., concurring)

(Jarkesy’s “commendable restraint” in not overruling

Atlas Roofing “has left us with a theoretical scramble:

a public-rights exception that the Founders

26

understood narrowly but that precedents force us to

construe broadly”); Sligo Creek Ctr. v. U.S. HHS, 177

F.4th 556, 560 (4th Cir. 2026) (Seventh Amendment

inapplicable “because this action ‘cannot be

distinguished from the enforcement action considered

in Atlas Roofing.’” (quoting Axalta, 144 F.4th at 475–

76)); Meta Platforms, Inc. v. FTC, 723 F. Supp. 3d 64,

92 (D.D.C. 2024) (concluding Atlas Roofing

“forecloses … [Meta’s Article III] claim”); Manis v.

U.S. Dep’t of Agric., 796 F. Supp. 3d 178, 205

(M.D.N.C. 2025) (“Atlas Roofing controls” postJarkesy and thus public-rights exception applies to

Horse Protection Act), appeal dismissed as moot, No.

25-2001 (4th Cir. June 17, 2026). Cf. Tex. Tobacco

Barn, LLC v. U.S. HHS, 180 F.4th 229, 244 (5th Cir.

2026) (Douglas, J., dissenting).

Finally, broader structural considerations may

further support jettisoning Atlas Roofing. It is

important to understand that the in-house

administrative enforcement scheme at issue here is

but one example of a far broader problem. “[T]here

are, at the very least, more than two dozen agencies

that can impose civil penalties in administrative

proceedings.” Jarkesy, 603 U.S. at 199 (Sotomayor, J.,

dissenting). Such agencies also impose pseudoequitable remedies that implicate private rights. See,

e.g., 15 U.S.C. § 45(c); Axon/Cochran, 598 U.S. at 204

(Thomas, J., concurring) (FTC’s attempt to force

business “to transfer intellectual property” implicates

“the core private right to property”).

Until recently, many of these executive lawenforcement agencies operated as “independent”

commissions, such as the Federal Trade Commission.

But last Term, this Court held that for-cause removal

27

protections shielding the heads of these bodies from

at-will removal are “contrary to the separation of

powers enshrined in the Constitution.” Trump v.

Slaughter, No. 25-332, 2026 WL 1855612, at *6 (U.S.

June 29, 2026); see id. at *15 (overruling Humphrey’s

Executor v. United States, 295 U.S. 602 (1935)). Now,

as Justice Gorsuch warned, “the fourth branch’s

powers still exist; they have just been reassigned to

the President.” Id. at *27 (Gorsuch, J., concurring).

“The ability to judge disputes in-house remains, but

now the house is white.” Id. at *26.

Slaughter lays bare the fundamental due

process problems with in-house administrative

prosecutions.11 See Utica Packing Co. v. Block, 781

F.2d 71, 78 (6th Cir. 1986) (“There is no guarantee of

fairness when the one who appoints a judge has the

power to remove the judge before the end of

proceedings for rendering a decision which displeases

the appointer.”). After all, whatever one thinks of ALJ

independence, it is the factual findings and decisions

of these formerly independent agency heads that are

reviewed with great deference. See, e.g., 15 U.S.C.

§ 45(c) (“The findings of the Commission as to the

facts, if supported by evidence, shall be conclusive.”),

§ 78y(a)(4) (similar); see Impax Labs., Inc. v. FTC, 994

F.3d 484, 492 (5th Cir. 2021) (likening “[t]his

deferential review” to “evaluating a jury’s verdict”).

Slaughter underscores why this Court should enforce

the Constitution’s bar against in-house adjudication

11 Ironically, Humphrey’s Executor itself observed that “one who

holds his office only during the pleasure of another, cannot be

depended upon to maintain an attitude of independence against

the latter’s will.” 295 U.S. at 629.

28

of private rights—full stop—and jettison Atlas

Roofing. See Slaughter, 2026 WL 1855612, at *26,

*28–29 (Gorsuch, J., concurring).

The Court should overrule this fatally

mistaken precedent and declare that whenever an

executive department or agency (as here) prosecutes

a law-enforcement case against a private citizen or

business for alleged violations of law, it must do so in

federal court, and it may not do so administratively.

CONCLUSION

The judgment of the Third Circuit should be

affirmed.

Respectfully submitted,

Margaret A. Little

Counsel of Record

Russell G. Ryan

Markham S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Dr., Suite 300

Arlington, VA 22203

(202) 869-5210

Peggy.Little@NCLA.legal

Counsel for Amici Curiae

Dated: August 3, 2026