April 2023

Surprise!  The Supreme Court has a 9-0 vote!

The Supreme Court voted 9 to 0 in a decision holding that individuals and businesses harpooned by an independent agency do not have to suffer a torturous government adjudication to challenge its constitutionality in federal court (Axon Enterprise v. FTC and SEC v. Cochran.)

The litigants in these cases wanted to challenge Federal Trade Commission and Securities and Exchange Commission actions on grounds that the agencies are unconstitutionally structured.  The question before the court was whether they had to run through the agencies long and expensive administrative process before they could go to federal court. 

Justice Elena Kagan, in the controlling opinion, explained that both parties in the two cases allege they are “being subjected” ‘to unconstitutional agency authority’-a proceeding by an unaccountable                                                                                                                                         [administrative law judge].’

Justice Kagan writes that “This Court has made clear that it is ‘a here-and-now injury.’  Here is the core of the issue: it is impossible to remedy once the proceeding is over, which is when appellate review kicks in.”  Judicial review after cases are adjudicated by the government “would come too late to be meaningful.’’