For decades the U.S. Supreme Court has acknowledged that it has no definition of the public-rights exception. Recent cases, culminating in SEC v. Jarkesy, reflect a clear sense that the public-rights exception veered off path in the twentieth century and that it is time to rein it in. The Jarkesy Court recognized that the political branches cannot invoke the public-rights exception to circumvent the American people’s right to judicial process when their life, liberty, or property is at stake. But the Court has not given any theoretical basis for the exception’s existence and has declined even to say what public rights are. Doctrinally, no one knows where the exception’s boundaries lie—or even what the exception fundamentally is.

But the constitutional text and history is simple and uncontested. Scholars across the spectrum agree that as a matter of text and history, the Constitution generally prohibits the government from depriving Americans of property rights outside judicial process. Properly understood, the public-rights exception simply observes that the Constitution permits extrajudicial adjudication when depriving a person of a right held by the public, e.g., the right to use a public road. The real public-rights exception is in no tension with the due process clauses or the vesting clauses’ separation of powers, all of which protect the right to judicial process in no uncertain terms. And as Justice Brett Kavanaugh has observed, existing Supreme Court precedent already contains the infrastructure for full implementation of the original understanding.

Practitioners should press this uncontested original understanding. The Supreme Court has asked litigants to advance arguments that are theoretically robust, and the Court has made clear that new doctrinal rules must be rooted in text and history. The originalist account of the public-rights exception is theoretically full, straightforward, undisputed, and supported by existing Supreme Court precedent. It should be briefed and fully adopted.

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