Supreme Court limits SEC's powers to impose fines

The U.S. Supreme Court, heading into the final stretch of the term, issued a raft of new and consequential decisions Thursday, on everything from opioids to ozone pollution.

In the space of less than a half hour Thursday morning, the high court invalidated a multi-billion dollar opioid settlement; it put a hold on an important EPA rule aimed at reducing ozone pollution; it temporarily allowed emergency abortions in Idaho in cases where the woman’s health, but not her life, is in grave jeopardy; and finally, the conservative supermajority continued its march to curtail agency power, ruling that Congress exceeded its power when it authorized the Securities and Exchange Commission to impose fines on financial wrongdoers.

The SEC decision stripped the agency of its major method of penalizing those found to have committed fraud in the securities industry. Congress specifically strengthened the law in 2010 by authorizing the agency to use independent administrative law judges to conduct hearings, to make factual findings, and to impose fines on those accused of securities fraud.

But writing for the court’s conservative supermajority on Thursday, Chief Justice John Roberts said that system violates the Seventh Amendment right to a jury trial. Although he acknowledged that under the current system the accused do have the right to appeal in federal court, Roberts said that is not the same thing as having the right to be tried by a jury of one’s peers in a courtroom supervised by a federal judge.

In a rare oral dissent from the bench, Justice Sonia Sotomayor accused the majority of “judicial aggrandizement” and blowing up the so-called public rights doctrine. Under that doctrine, she observed, the court has, for more than a century, permitted agencies, when authorized by Congress, to impose monetary penalties on those who have defrauded the government.

“Make no mistake,” she said. "Today’s decision is a power grab. Once again the majority arrogates Congress’s policymaking role to itself,” And in so doing, she said, the court had cast a cloud of doubt over the way dozens of agencies carry out their congressional mandates. Congress, she said, “had no reason to anticipate the chaos today’s majority would unleash after all these years.”

Indeed, the court’s decision could have huge ripple effects for agencies that use a process like the SEC’s to enforce laws on everything from labor rights to mine safety and energy regulation. But as Case Western University professor Jonathan Adler observes, the court majority did carve out an exception for agencies that deal with federal benefits.

“The court doesn’t touch Congress’ ability to allow agency adjudication for public benefits and pensions and patents and things like that,” he said.

Indeed, the court’s decision leaves in tact the Social Security Administration’s cadre of 1,500 administrative law judges who make decision in a half million cases every year.

The SEC case was brought by George Jarkesy, a former conservative radio talk show host and hedge fund manager, who was supported in the case by a who’s who of conservative and business groups, plus some individuals like Elon Musk, who has repeatedly resisted the SEC’s attempts to probe whether he illegally manipulated his company’s stock.

Jarkesy was investigated for fraud, and after a hearing before an administrative law judge, he was fined $300,000 and ordered to pay back $700,000 in ill-gotten gains; in addition, the agency barred him from various activities in the securities industry.

Thursday’s Supreme Court decision did not touch the $700,000 in restitution, just the fine. George Washington University law professor Alan Morrison says the court seems to be drawing a line between a fine—a penalty-- which is not permissible, and restitution, which is permissible. That, he notes may be a saving grace for the agency.

“An agency like the SEC may say, look, disgorgement is a lot of money and we’ll be happy to get disgorgement at the administrative level,” he said.

Ironically, after today’s ruling, the SEC is likely to suffer fewer consequences than other agencies, largely because the Supreme Court, beginning in 2018, began eating away at the agency’s power to use administrative law judges, and in response, the SEC decreased the number of ALJ’s at the agency from 6 to 2, choosing instead to bring its cases mainly in federal court.

Yet, even for the SEC, the impact of Thursday’s ruling is significant.

“There will be a permanent change in how the SEC will be using its administrative courts," said Richard Hong, who spent seventeen years as an SEC trial attorney. "It has been increasingly moribund in the past few years, and now you can officially call it dead for fraud cases seeking penalties.”