After a sustained legal attack during the last couple of years on the U.S. Securities and Exchange Commission’s expanded use of its administrative proceedings, it looks like the U.S. Supreme Court may finally weigh in on their constitutionality.
A division among federal appeals courts now exists over whether the SEC’s in-house judges are appointed properly. At issue is an obscure provision of the U.S. Constitution known as the Appointments Clause, which details presidential appointments that require Senate confirmation. Courts have split on the issue of whether the SEC’s Administrative Law Judges (ALJs) need Senate approval due to the significant discretion ALJs wield in presiding over enforcement hearings or whether ALJs should be viewed as agency employees.
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