In recent years, the SEC has come under fire by some who have questioned the constitutionality of its in-house trials. Yesterday (Feb. 16), a U.S. appeals court said that it would rehear a challenge concerning the Securities and Exchange Commission’s use of in-house judges, said Reuters.
In May of last year, a ruling held that the SEC’s administrative law judges were unconstitutionally appointed. A three-judge panel of the D.C. Circuit ruled again on the matter in August, said Reuters. Then, last December, a federal appeals court in Denver again ruled that the appointments process was unconstitutional. This, said Reuters, suggested that the case might ultimately be decided by the Supreme Court.
The most recent order issued by the U.S. Court of Appeals for the District of Columbia Circuit reportedly wiped out a three-judge panel’s August decision in favor of the commission. The court indicated that 10 of the court’s judges will hear the case, beginning with oral arguments scheduled to be held on May 24 of this year.
Administrative law judges are reportedly independent of the government agencies for whom they work. Their employing agency can seek their removal, but defense attorneys have argued that the appointment of SEC administrative law judges violates the separation of powers clause, as it is allegedly impossible for the president to remove those judges.
The case against the SEC is similar in nature to issues surrounding the appointment of the U.S. Consumer Financial Protection Bureau’s director. The court also said on Thursday it would rehear the CFPB case.