The SEC's Fight to Stop District Courts from Declaring Its Hearings Unconstitutional
65 Pages Posted: 2 Apr 2022 Last revised: 20 Jun 2022
Date Written: January 1, 2022
Can the Securities and Exchange Commission (SEC) unilaterally deny a United States citizen the right to challenge the constitutionality of the agency’s administrative hearings in district court? The SEC thinks so, but it makes no sense for these constitutional challenges to be brought in the very proceeding that allegedly, and likely, violates the U.S. Constitution. The appellate courts mostly agreed with the SEC, until recently, when the Fifth Circuit held that the district courts should hear these claims. Given this circuit split, this issue will soon reach the Supreme Court, making this article extremely timely.
The Securities Exchange Act of 1934 authorized the SEC to regulate securities. More recently, Congress amended that act to give the SEC the ability to bring enforcement cases either in federal court before an Article III judge or in its in-house forum before an SEC Administrative Law Judge (ALJ). After numerous losses in federal court, the SEC moved in-house and did so aggressively. As the SEC used adjudication more frequently, entities on the receiving end of an enforcement action challenged the constitutionality of the in-house process. They sued in federal district courts around the nation, raising a variety of constitutional claims, including unlawful delegation, violation of equal protection and due process, interference with the right to a jury trial, and unconstitutional appointment and removal of SEC ALJs.
In response, the SEC argued that federal courts lacked subject matter jurisdiction to hear the claims, citing the doctrine of implied preclusion. The SEC argued that its decision to bring an in-house adjudication against an entity forecloses the federal district courts from hearing any challenges to the SEC’s process, including constitutional challenges. The claims can be heard only on appeal of the agency’s decision. In short, plaintiffs must endure the very harm they claim is unconstitutional before the issue can be heard in an Article III court. Not surprisingly, plaintiffs counter that they should not have to endure an unconstitutional proceeding before being able to raise their claim that the process is unconstitutional, especially given that no adequate remedy can be provided. You can’t unscramble an egg!
Resolution of this issue is important because it addresses a fundamental question: who should resolve challenges regarding an agency’s constitutionality, the federal courts or the adjudicating agency? Importantly, the SEC is not the only agency mounting this fight. Other agencies are also using the implied preclusion doctrine to prevent district courts from adjudicating their constitutionality. This article explains the implied preclusion doctrine and why the agencies are wrong. Federal courts should determine whether the agencies’ adjudicatory processes violate the Constitution, not the agencies themselves.
Keywords: implied preclusion, agency adjudication, constitutional challenges to agency structure, Axon Enterprises, Securities and Exchange Commission, Administrative Law Judge
JEL Classification: K2, K23
Suggested Citation: Suggested Citation