News Release
October 18, 2023
ALF Argues That SEC In-House Enforcement Proceedings Deprive Defendants of
Due Process

Question Presented:

Whether SEC In-House Administrative Enforcement Proceedings are Constitutional
"Individuals and corporations are deprived of due process when the SEC hales them into an in-house administrative enforcement proceeding prosecuted by SEC enforcement staff on their own home turf, conducted under SEC-friendly procedural and evidentiary rules by an SEC-employed ALJ, and if appealed, reviewed and finalized—virtually always in the SEC’s favor—by the SEC Commissioners, who authorized initiation of the enforcement proceeding."

Atlantic Legal Foundation
The Atlantic Legal Foundation has filed an amicus brief urging the Supreme Court to affirm a Fifth Circuit ruling that Securities and Exchange Commission (SEC) "in-house" civil administrative enforcement proceedings are structurally unconstitutional on three grounds.

Case Background

In SEC v. Jarkesy, No. 22-859, a securities fraud case, the Supreme Court has agreed to review a Fifth Circuit opinion holding that SEC “in-house” civil administrative enforcement proceedings are unconstitutional because (i) they deprive respondents (i.e., defendants) of their Seventh Amendment right to a trial by jury; (ii) Congress unconstitutionally delegated legislative power to the SEC by failing to provide an “intelligible principle” governing the Commission’s unfettered choice of whether to proceed against an enforcement target in-house rather than in a federal district court; and (iii) the statutory for-cause-only removal protection afforded to SEC administrative law judges (ALJs) is unconstitutional.

ALF's Amicus Brief

ALF’s brief argues that the harsh penalties that can be imposed on SEC civil enforcement targets for securities law violations—monetary fines, disgorgement of ill-gotten gains, prohibitions against participation in the securities industry and resultant reputational harm—heighten the need for procedural due process. Compared to the robust due process protections afforded to SEC civil enforcement defendants in district courts, individual and corporate respondents in SEC in-house adjudications are provided significantly less due process.

For example, the SEC’s internal Rules of Practice, 17 C.F.R. § 201.100 et seq., are sharply slanted in the agency’s favor, both on their face and as applied. The Commission (i.e., the five SEC Commissioners) not only acts as prosecutor when it authorizes initiation of an in-house enforcement action, but also as judge when it reviews an ALJ decision and then almost always rules in the SEC’s favor.

Neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence apply to hearings conducted by SEC ALJs. Discovery is curtailed, and respondents are rarely afforded adequate time to prepare a defense. Unlike the federal rules, hearsay is generally allowed, and there are no specific criteria governing admissibility of expert testimony. After an SEC ALJ issues an “initial decision,” the Commission can take as long as it wishes to review it, and thereby delay the respondent’s statutory right to judicial review of the SEC's enforcement claims.

ALF argues that these and other due process deficiencies that infect SEC in-house enforcement proceedings provide additional context to the constitutional defects identified by the Fifth Circuit and support affirmance of that court’s ruling.
Media Contact: Larry Ebner | Tel: 202-349-1421
About the Atlantic Legal Foundation

For more than 46 years, the Atlantic Legal Foundation, a national, nonprofit, nonpartisan, public interest law firm, has advocated in the Supreme Court, federal courts of appeals, and state appellate courts for individual liberty, free enterprise, property rights, limited & responsible government, sound science in judicial & regulatory proceedings, and effective education, including parental rights and school choice.
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