Administrative Remedies

Jarkesy Jumps to the FTC
Less than two years after the Supreme Court's decision in SEC v. Jarkesy, the Fifth Circuit has applied the same constitutional logic to the FTC — and the implications are far bigger than one agency.
In Intuit v. FTC, the court vacated a cease-and-desist order against TurboTax's "free" advertising, holding that the FTC's in-house adjudication of deceptive advertising claims violates the separation of powers. The agency that Congress deliberately designed in 1914 to adjudicate cases in-house — with bipartisan structure, Senate-debated architecture, and over a century of practice — just had that design declared unconstitutional in the Fifth Circuit.
In this episode, Gwen and Marc break down:
Why deceptive advertising under Section 5 shares enough of a "common core" with common law fraud to require an Article III court
The Fifth Circuit's significant extension of Jarkesy: the private rights analysis follows the claim, not the remedy — meaning even cease-and-desist orders (equitable relief) can trigger the Article III requirement
Why the FTC's 110-year history of in-house adjudication didn't save it
The deception/unfairness distinction — and why how the FTC frames a complaint may now be the constitutional question
The real-world tradeoff: more process for regulated parties means slower, costlier, and fewer enforcement actions for consumers
This decision is binding only in the Fifth Circuit, but it's grounded in Supreme Court precedent — giving any respondent in an FTC administrative proceeding nationwide a roadmap to challenge in-house adjudication of deception claims.
Jarkesy was never just an SEC case. The next domino could be the CFPB, the FDA, or any agency whose enforcement authority traces back to common law wrongs.
Released the day before Tax Day — which, for the record, hasn't actually fallen on April 15th since 2021.

The parents leave a rule: milk with dinner. The babysitter enforces it — no problem. But when one kid hits the other, does the babysitter handle that too? She saw the whole thing, she knows the context, and she's been managing exactly these situations for years. But hitting was wrong before she ever showed up. In SEC v. Jarkesy, the Supreme Court drew that same line through agency enforcement. Gwen and Marc trace the public rights doctrine from Murray's Lessee in 1855 through Atlas Roofing in 1977 — the case agencies relied on for nearly fifty years — to explain why the Court decided that when the SEC pursues civil penalties for securities fraud, the Seventh Amendment requires a jury trial. The problem: the opinion never clearly explains why fraud causing financial loss is closer to the common law core than negligence causing death, which Atlas Roofing had called a public right. The result is a new boundary that no one can precisely locate, with every enforcement agency left wondering which of its cases can stay in-house and which now have to go to federal court — and a likely reduction in enforcement that protects innocent defendants and guilty ones alike.

Can the government send you to a foreign prison without giving you any way to say, "You've got the wrong person"? In this companion episode to their Matthews v. Eldridge discussion, Gwen and Marc apply the due process framework to three developments unfolding in real time: the administration's use of the 1798 Alien Enemies Act to deport Venezuelan nationals without individualized hearings, the Abrego Garcia case — where a man with a court order protecting him ended up in the exact prison an immigration judge said he couldn't be sent to — and a new rule that would have made meaningful immigration appeals nearly impossible before a federal court blocked it. They run the Matthews factors on each, showing how a Bloomberg investigation found roughly 90% of those deported had no criminal record, why the government's "administrative error" defense proves the need for pre-removal checkpoints, and what happens when the government acts first and argues courts can't fix it later. This episode isn't about whether borders should be secure or whether gangs are dangerous — it's about the constitutional principle, enshrined before the Bill of Rights even existed, that the government must let you challenge your detention. Because when that breaks down, it doesn't just affect the people in custody. It threatens the structure that protects everyone.

Tornado watches, warnings, and sirens don't all mean the same thing — and if you live in Oklahoma, you know you don't even run to a shelter every time a siren goes off. You calibrate your response to the actual level of threat. The Supreme Court says due process works the same way.
In this episode, Gwen and Marc break down Mathews v. Eldridge — the due process balancing test that has governed how every federal agency designs its procedures for the past fifty years. The test asks three questions: How serious is what you stand to lose? How likely is the government to get it wrong without more process? And what would it actually cost to do more? The answers determine how much process the Constitution requires before the government acts — and whether you get a hearing at all before your benefits stop, your license is suspended, or you're barred from flying.
Working through Social Security disability terminations, ten-day school suspensions (Goss v. Lopez), civil service firings (Loudermill), and the no-fly list, they show how the same three-factor framework produces dramatically different results depending on context — from a full evidentiary hearing to a conversation in a principal's office.
The sharpest tension: Mathews said that paper review of medical evidence was good enough to terminate disability benefits without a prior hearing. But for conditions like chronic pain, depression, and fibromyalgia — where credibility is everything — a paper review misses exactly what a hearing would catch. The constitutional minimum and the practical reality diverged, and eventually Congress had to step in.
Mathews doesn't just tell courts how to evaluate procedures after the fact. It's the design specification agencies are supposed to use when they build their systems in the first place — and when they don't, courts use it to force a redesign.

Gwen and Marc cover the cases that define what counts as "property" for due process purposes—and why the answer to that question determines whether the Constitution shows up at all.
They contrast two nurses: Linda, who has her license suspended without a hearing, and Kevin, who is denied a license application with no explanation. Same state, same nursing board, same situation—but Linda gets constitutional protection while Kevin gets nothing. The difference? Linda has a property interest; Kevin has only a "unilateral expectation."
Gwen and Marc work through Board of Regents v. Roth, which establishes that property interests aren't created by the Constitution—they're created by state law, statutes, regulations, and contracts. They examine Perry v. Sindermann, where the Supreme Court said agencies can't make promises with one hand and disclaim them with the other. They discuss Cleveland Board of Education v. Loudermill, which holds that once a state creates an entitlement, it can't strip away the procedural protections that come with it.
They also tackle Town of Castle Rock v. Gonzales, the tragic case where three children were murdered after police failed to enforce a restraining order—and the Supreme Court said there was no property interest in police enforcement, even when the statute said "shall arrest." Gwen and Marc explore the uncomfortable reality that due process protects you when the government takes something you have, but doesn't require the government to act for you.
Through examples ranging from hair braiding licenses to civil service employment, they show how program design isn't neutral—it's constitutional architecture.
They Cover
Board of Regents v. Roth: "legitimate claim of entitlement" versus "unilateral expectation"
Perry v. Sindermann: how mutually explicit understandings create property interests
Cleveland Board of Education v. Loudermill: why states can't define away procedural protections
Town of Castle Rock v. Gonzales: the narrow gate for entitlements and the limits of mandatory language
Liberty interests and the stigma-plus requirement
How agencies design programs to create or avoid constitutional protections
Real-world examples: professional licensing, government employment, welfare benefits
Featured Cases
Board of Regents v. Roth (1972)
Perry v. Sindermann (1972)
Cleveland Board of Education v. Loudermill (1985)
Town of Castle Rock v. Gonzales (2005)
Key Concepts
Legitimate claim of entitlement: The standard from Roth that determines whether you have a property interest
Constitutional architecture: How agencies design programs to trigger or avoid due process requirements
Stigma-plus test: Reputation damage alone isn't enough—you need tangible harm
Shall versus may: Why mandatory statutory language doesn't always create entitlements