These Two SCOTUS Cases Could Put The Administrative State In Its Place 

Justice delayed is justice denied — or so the old saying goes. And although swimming in complex factual and legal issues, two cases that will be argued at the Supreme Court on Monday will put that adage to the test.

Start with Axon Enterprise v. Federal Trade Commission. The company makes police body cameras and digital evidence management systems. Shortly after acquiring an insolvent firm making similar products, the FTC claimed Axon’s acquisition raised antitrust concerns. The FTC filed suit, but not in a court of law. Instead, the FTC took the case to its own internal “court” with its own employee as the judge. 

Turn to Securities and Exchange Commission v. Cochran. Michelle Cochran worked for an accounting firm in Texas; after she left that job, the SEC hauled Cochran into its in-house court on claims of paperwork irregularities. Not even the SEC claimed that anyone had been deceived or harmed because of these errors.

Both Axon and Cochran wanted fair proceedings — not in-house Star Chambers — so they filed lawsuits in federal court. After all, in their in-house adjudications, the agencies act as police, prosecutor, judge, and jury. Many traditional rules in federal courts that ensure fairness — such as fixed evidentiary standards — don’t apply in internal agency proceedings. And federal courts often defer to the agency’s findings if their rulings are appealed.

Not surprisingly, agencies enjoy a clear home-field advantage. Win rates in their own in-house courts are sky high: Cochran’s brief states that the SEC won more than 90 percent of the cases that it brought in-house between 2010 and 2015. Former FTC commissioners have noted that the FTC won nearly 100 percent of cases during their time there. 

Judging Their Own Case with No Accountability

Thoughtful observers have long questioned the constitutionality — and the fairness — of these agency proceedings. Keep in mind: Commissioners both vote to file the complaint and determine all final questions of fact and law. Axon and Cochran, in other words, will not prove their cases to an impartial judge or jury; they must prove their case to the very people suing them. No wonder Professor Gary Lawson has written that the FTC’s combination of prosecutorial and judicial functions clashes with the deeply rooted principle that “no man can be a judge in his own case.” 

Other constitutional problems linger still. Axon and Cochran raise arguments about the agencies’ structures, including special insulation from presidential control. Good-cause removal protections for the agency commissioners and administrative law judges ensure they will not be held democratically accountable. And Axon says the FTC’s arbitrary choice to bring a case internally (instead of in federal court) violates equal protection principles. Each argument alone could stop the agencies in their tracks. 

Long Wait for a Day in Court

Yet the Supreme Court will address none of these important constitutional issues this term. Instead, the justices must grapple with a fundamental antecedent question: Who decides? The agencies claim that Axon and Cochran must endure years of litigation at the agency tribunal before ever getting a chance to go to an impartial court to make their constitutional

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