Many targets of S.E.C. administrative law enforcement actions have sued on the grounds of equal protection, due process and separation of powers, seeking to require the agency to bring its claims to court, if at all.
I find these lawsuits unconvincing. Agencies have almost absolute discretion as to whom and how they prosecute, and it would be surprising if administrative proceedings, which have been in existence in their current form for almost 70 years, during which they have been repeatedly reviewed by the Supreme Court, suddenly became unconstitutional. I am accordingly unsurprised that, although a few judges have entertained constitutional claims against the S.E.C.’s administrative proceedings, more have rejected them.
‘Enforcement 40’ for 2020
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