When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, it granted the Securities and Exchange Commission new authority to seek monetary penalties against non-regulated individuals, a power that the agency has begun to use broadly.1 The SEC’s asserted right to bring such enforcement proceedings in its own administrative tribunals, rather than in federal district courts, however, has led to numerous constitutional and other challenges. The lower courts have come down on both sides of one key question: whether the statutory review process set forth in 15 U.S.C. §78y of the Securities Exchange Act of 1934 precludes district-court jurisdiction over constitutional challenges to Dodd-Frank.
Recently, the Supreme Court had the opportunity to weigh in on this question in a case called Bebo v. SEC. Given the increasingly heated debate that the issue has generated, some spectators were surprised when the Supreme Court denied certiorari.2 In all events, the case has brought attention to some thorny jurisdictional and constitutional issues that we will highlight in this article.
‘Thunder Basin’ Sets the Stage
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