No Guardrails for Regulators – WSJ

Congress expressly gave federal district courts original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. While the FTC Act requires defendants to wait for the commission to render a final order before appealing in court, Congress didn t restrict judicial review of constitutional challenges.

The High Court s Free Enterprise Fund (2010) decision upheld federal court jurisdiction over a similar constitutional challenge to the Public Company Accounting Oversight Board. Chief Justice John Roberts wrote in the majority opinion that the government offers no reason and cites no authority why separation-of-powers challenges are different than other complaints of constitutional violations.

Now the FTC argues that Congress implicitly stripped federal district courts of jurisdiction by expressly providing appellate court review of final agency orders. In a separate case before the Supreme Court, the Securities and Exchange Commission makes the same argument concerning a constitutional challenge to removal restrictions for its administrative law judges.

But as the defendant in the SEC case argues, proceedings frequently drag on for several years and take such an enormous personal, financial, and reputational toll on their targets that most despite vigorously asserting their innocence are forced to capitulate. Preventing constitutional challenges until a punishment is rendered has the effect of denying plaintiffs the right to judicial review.

Administrative agencies are compounding their constitutional abuses by throwing up roadblocks for defendants to obtain relief. In doing so, they re underscoring why courts need to keep them in check.

via www.wsj.com

I harbor the pious hope that the Supremes rule, as to me seems obvious, that the FTC and implicitly the rest of these so-called independent agencies, is exceeding its jurisdiction. There are many, many brilliant admin law scholars who have much more informed opinions than I about this. Most of them are I hope wrong, if the Constitution means anything. I hope SCOTUS agrees with me.