The constitutionality of in-house adjudications by the Securities and Exchange Commission has beenin the news of late, and the U.S. Chamber of Commerce has made a number of recommendations to improve SEC adjudications, including that individuals and organizations be able to remove the SEC in-house adjudication to federal court.
David Zaring has a great new article—Enforcement Discretion at the SEC (Texas Law Reviewforthcoming)—that pushes back on the constitutional and normative attacks on SEC adjudication. Here’s a summary, from the SSRN abstract:
The Dodd-Frank Wall Street Reform Act allowed the Securities & Exchange Commission to bring almost any claim that it can file in federal court to its own Administrative Law Judges. The agency has since taken up this power against a panoply of alleged insider traders and other perpetrators of securities fraud. Many targets of SEC ALJ enforcement actions have sued on equal protection, due process, and separation of powers grounds, seeking to require the agency to sue them in court, if at all.
This article evaluates the SEC’s new ALJ policy both qualitatively and quantitatively, offering an in-depth perspective on how formal adjudication—the term for the sort of adjudication over which ALJs preside—works today. It argues that the suits challenging the SEC’s ALJ routing are without merit; agencies have almost absolute discretion as to who and how they prosecute, and administrative proceedings, which have a long history, do not threaten the Constitution. The controversy illuminates instead dueling traditions in the increasingly intertwined doctrines of corporate and administrative law; the corporate bar expects its judges to do equity, agencies, and their adjudicators, are more inclined to privilege procedural regularity.
A full draft of the paper is available on SSRN here . Definitely go give it a read.