Justice Department lawyer Malcolm Stewart said federal courts normally try to “avoid constitutional challenges if it’s possible to do so.”
Cochran has been battling the SEC since 2016, when the commission first accused her of engaging in improper professional conduct. Her lawyer, Gregory Garre, told the justices that “this case illustrates the crucial importance of this district court jurisdiction for everyday Americans who find themselves trapped before an unconstitutional agency decisionmaker.”
Axon is fighting the FTC’s effort to unwind the company’s acquisition of a rival. In addition to challenging the tenure protections for the commission’s lone ALJ, the company seeks to challenge the process by which the FTC and the Justice Department decide which agency will review a deal. Unlike the FTC, DOJ litigates only in federal court.
The company’s lawyer, Paul Clement, argued that “any review mechanism that delays judicial review of a here-and-now constitutional injury until it has come and went does not provide meaningful review.”
Narrow Ruling
Several justices said the sweeping arguments pressed by the private lawyers might go too far in undercutting in-house adjudications.
“Suppose you claimed something about the way agencies treated witnesses, or what kinds of witnesses were allowed, or what kinds of cross examination, or when subpoenas were issued, or -- you could just keep on going,” Justice Elena Kagan said to Clement. “I mean would all of that go to a court first?”
Justice Brett Kavanaugh, who could wield a pivotal vote, indicated he read the court’s precedents as offering a narrow way to resolve the cases. He suggested the court could rule for Axon and Cochran because their challenges are “wholly collateral” to the complaints filed against them by the agency.
“What I’m challenging and pushing back on is kind of throwing it all open again after decades of trying to figure out how these claims should be sorted out,” Kavanaugh told Garre. The possibility “causes me some concern, at least,” Kavanaugh said.
The court is scheduled to rule by June in the cases, Axon v. Federal Trade Commission, 21-86, and Securities and Exchange Commission v. Cochran, 21-1239.
--With assistance from Lydia Beyoud, Leah Nylen and Sara Forden.
This article was provided by Bloomberg News.