Thomas, J., concurring
put a thumb (or perhaps two forearms) on the agency’s side of the scale.” Id., at 1247–1248. Such a regime “allows a mere party to supplant a jury as the court’s fact finder,” Hamburger 319, and it “effectively vest[s] the judicial power either in the agency or in Congress,” Lawson 1247. It thus appears likely that, “when agency adjudicators stray outside the proper limits of executive adjudication such as by depriving individuals of vested property rights, they must not serve even as fact-finders subject to judicial deference.” Mascott 25 (footnote omitted).
In sum, whether any form of administrative adjudication is constitutionally permissible likely turns on the nature of the right in question. If private rights are at stake, the Constitution likely requires plenary Article III adjudication. Conversely, if privileges or public rights are at stake, Congress likely can foreclose judicial review at will.
III
The rights at issue in these cases appear to be core private rights that must be adjudicated by Article III courts. For one, Axon and Cochran face the threat of significant monetary fines. Indeed, in the first round of proceedings, the SEC imposed a $22,500 civil penalty on Cochran. And, the FTC seeks to require Axon to transfer intellectual property to another entity. These types of penalties and orders implicate the core private right to property. See Lawson 1247 (“imposition of a civil penalty or fine” implicates core Article III power); see also Nelson 626–627. Accordingly, they likely must be adjudicated by Article III courts and juries. See Tull, 481 U. S., at 422 (“A civil penalty was a type of remedy at common law that could only be enforced in courts of law”); accord, id., at 427–428 (Scalia, J., concurring in part and dissenting in part). Naturally, merely labeling the deprivation of a core private right a “civil penalty” cannot allow Congress and agencies to circumvent constitutional requirements. Cf. Granfinanciera, S. A. v.
