By a vote of 6–3, with Chief Justice John Roberts writing for the majority, the Supreme Court ruled on Thursday that if the Securities and Exchange Commission wishes to seek civil penalties for violations of the anti-fraud laws that it enforces, it, and cannot obtain that remedy in proceedings before the agency.
There was no dispute that, if the SEC went to court, Jarkesy would have been entitled to a jury under the Seventh Amendment and a judge appointed for life, as well as many other procedural rules available there, but not as part of an SEC enforcement action before an administrative law judge.
The SEC did not have the power to seek penalties in court until 2010, and not all agencies have that power now. Going forward, every defendant facing an administrative agency complaint seeking penalties will trot out, and will claim that the agency is constitutionally barred from even commencing the case and the court should step in immediately.
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