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SCOTUS delivers a constitutional blow to SEC’s ALJ process

Joe Mont | June 26, 2018

The Securities and Exchange Commission has suffered a potentially crippling blow to its controversial use of in-house administrative law judges.

Over the years, the Commission has increased its reliance on the use of in-house judges and self-contained administrative proceedings to adjudicate cases that might otherwise wind up in federal court. A common grievance among defendants is that the deck is stacked against them with in-house judges they claim are biased in favor of the agency. Procedural rules are similarly slanted in favor of the prosecution, as is an appeals process that gives commissioners the final say.

Score one for the critics. The Supreme Court, on June 21, announced a 7-2 vote ruling that the SEC’s selection of its five current administrative law judges was unconstitutional because they were chosen—and could be dismissed—through a civil service process, rather than by a quorum of commissioners acting as a presidential stand-in. The Court ruled that...

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