Quasi-Governmental Prosecution After Jarkesy
Securities and Exchange Commission v. Jarkesy Footnote #1 content: 603 U.S. 109 (2024). —which held that Article III of the Constitution and the Seventh Amendment prohibit the Securities and Exchange Commission (“SEC”) from penalizing wrongdoers using non-jury administrative tribunals—was just the latest in a string of Supreme Court rulings that have reined in the power of administrative agencies and, in particular, agency law enforcement power. Among other prior rulings, the Court rejected agency efforts to evade or enlarge their statutory deadlines for commencing enforcement proceedings; Footnote #2 content: Kokesh v. SEC, 581 U.S. 455, 457, 461 (2017) (SEC cases seeking disgorgement); Gabelli v. SEC, 568 U.S. 442, 447–49 (2013) (SEC cases seeking civil monetary penalties). curtailed agency power to seek restitution and disgorgement from alleged wrongdoers; Footnote #3 content: AMG Capital Mgmt., LLC v. FTC, 593 U.S. 67, 70, 73–78 (2021) (restitution); see Liu v. SEC, 591 U.S. 71, 84–88 (2020) (disgorgement). required agency adjudicators of enforcement cases and other important matters to be appointed by the President or by a presidentially appointed and Senate-confirmed “Head of Department;” Footnote #4 content: See Lucia v. SEC, 585 U.S. 237, 241, 244–49 (2018) (addressing SEC administrative law judges); see United States v. Arthrex, 594 U.S. 1, 14–18 (2021) (addressing administrative patent judges assigned to the Patent Trial and Appeal Board). invalidated excessive statutory restrictions on the President’s ability to remove agency officers who wield significant executive powers; Footnote #5 content: See Seila Law LLC v. CFPB, 591 U.S. 197, 213 (2020); Free Enter. Fund v. PCAOB, 561 U.S. 477, 495–98 (2010). and allowed agency enforcement targets to preemptively enlist federal district courts to scrutinize the structural constitutionality of agency in-house, non-jury administrative enforcement proceedings instead of forcing them to endure the entire administrative process before seeking judicial relief. Footnote #6 content: Axon Enter. v. FTC, 598 U.S. 175, 180, 188–189, 195–196 (2023); Free Enter. Fund v. PCAOB, 561 U.S. 477, 489–91 (2010). Now, with Jarkesy, the Court has forbidden agencies to unilaterally impose monetary enforcement penalties through in-house, non-jury administrative adjudications, effectively requiring those agencies to seek such penalties only from Article III courts and juries. Footnote #7 content: See SEC v. Jarkesy, 603 U.S. 109, 120–21 (2024).
Thus far, these cases have challenged conventional government agencies subject to the Administrative Procedure Act. Footnote #8 content: See 5 U.S.C. § 551(1). But what about the growing number of private, quasi-governmental regulators who now enforce federal law, many of which wield substantial executive power comparable to conventional government agencies but with far less transparency and accountability? A few prominent examples, discussed herein, include the securities industry self-regulatory organizations nominally overseen by the SEC, most notably the Financial Industry Regulatory Authority (FINRA); the Public Company Accounting Oversight Board (PCAOB), which is also nominally overseen by the SEC; and the Horseracing Integrity and Safety Authority (HISA), which is nominally overseen by the Federal Trade Commission (FTC). Congress has grown increasingly fond of empowering such nominally private corporations to investigate and punish alleged wrongdoers using enforcement processes largely modeled on those of conventional agencies. Does the Court’s recent rollback of agency executive power—in particular, the Article III and jury-trial requirements of Jarkesy—apply equally to these private, quasi-governmental regulators?
This article addresses that question and suggests that the answer should be yes. Part I describes the structure and executive powers of FINRA, the PCAOB, and HISA. Part II identifies several structural constitutional defects inherent in the enforcement and disciplinary processes used by these quasi-governmental regulators to investigate, prosecute, and punish alleged wrongdoers, including the unavailability of jury trials. Part III then discusses the issues raised in, and the current status of, several ongoing court cases in which litigants have challenged these structural constitutional defects.
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