Congress Should Change Agency In-House Courts’ Lax Evidence Rules

Although the issue in Jarkesy is whether a defendant is entitled to have a jury decide the facts, some of the discussion at oral argument last week had more to do with the rules that apply in those in-house forums.

In response to one of the justices, counsel for Jarkesy noted that the federal rules of evidence don’t apply in agency proceedings. It’s a point that should get more attention—as agencies across the federal government, including the SEC, the Board of Immigration Appeals, the Consumer Financial Protection Bureau, and the Federal Trade Commission, have their own more informal rules of evidence that can dramatically affect how the facts are determined.

Congress enacted these more lenient rules decades ago, before agencies were given the authority to seek massive civil penalties in in-house proceedings. Research from Northern Illinois University College of Law and other studies have shown that the SEC and banking agencies have sought increasingly steep penalties.


Regardless what the Supreme Court decides, Congress—as the entity that made these rules—can and should step in.

Source: Congress Should Change Agency In-House Courts’ Lax Evidence Rules