ANALYSIS: The SEC (and its Administrative Law Judges) Win Again

In a major victory for the Securities and Exchange Commission, the D.C. Circuit yesterday ruled that the agency’s in-house tribunals are constitutional.

Judge Judith W. Rogers issued the ruling in the leading case challenging the constitutionality of the appointment of the SEC’s administrative law judges. Rogers said that because ALJs don’t issue “final” decisions on behalf of the agency, they can’t be considered officers subject to Appointments Clause restrictions on their employment.

The SEC has previously fought constitutional claims in several venues, but those cases have been ruled to be premature because the respondents had not yet received an adverse ...