As Musk tussles with SEC over tweets, single mom asks SCOTUS to review agency’s in-house judges.
Just The News: The Securities and Exchange Commission’s vast authority may be best known from its legal efforts to clamp down on Tesla CEO Elon Musk’s tweets.
But little-noticed constitutional challenges against federal agencies’ adjudication powers may have bigger effects than the billionaire would-be rapper’s First Amendment challenge to the consent decree the SEC allegedly coerced him to sign in response to his marijuana joke.
The separation-of-powers litigation targets the administrative law judge (ALJ) system that lets the feds both prosecute defendants and judge them in-house, allegedly favoring the agencies that pay the judges’ salaries and give them near-total protection against removal.
The Supreme Court struck down the SEC’s practice of commission staff hiring ALJs in 2018, ruling they are “inferior officers” who must be appointed by the president or department head, but left open whether their removal is also governed by the appointments clause.
Plaintiffs must first overcome a different hurdle: convincing the high court they can challenge the ALJ system in lower courts.
The full 5th U.S. Circuit Court of Appeals created a circuit split when it ruled in December that certified public accountant Michelle Cochran can challenge the SEC’s system “before a real Article III federal court rather than be subjected to an endless series of unlawful agency hearings,” her lawyers at the New Civil Liberties Alliance (NCLA) said at the time. more here
Courts have become too powerful