Mark D. Harris and Margaret A. Dale Fifth Circuit Guts SEC's Administrative Enforcement Powers
A recent decision held the SEC's administrative-enforcement regime to be unconstitutional in no fewer than three distinct ways, effectively hobbling the agency's use of ALJs, along with all their attendant advantages.
July 06, 2022 at 12:00 PM
7 minute read
Since 2010, the Securities and Exchange Commission has enjoyed the authority to pursue monetary penalties before its own in-house courts. In the recent decision of Jarkesy v. Securities and Exchange Commission, 34 F.4th 446 (5th Cir. 2022), the Fifth Circuit significantly undercut—if not eliminated—the SEC's ability to adjudicate such actions. The decision held the Commission's administrative-enforcement regime to be unconstitutional in no fewer than three distinct ways, effectively hobbling the agency's use of ALJs, along with all their attendant advantages.
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