Cochran v. SEC

The Institute for Justice (IJ) filed an amicus brief in the United States Supreme Court, which aims to uphold a basic principle of the American system of government: the separation of powers. 

At stake in the case is whether or not federal courts retain their jurisdiction to determine if an executive agency’s structure or procedures are unconstitutional, or if litigants must first go through the very unconstitutional process they are challenging. Typically, when a federal official violates the law, someone injured by that action can sue in federal court to stop the illegal conduct. But as it currently stands, many courts refuse to hear cases when the federal officials accused of violating the Constitution work for federal agencies.   

In 2016, the U.S. Securities and Exchange Commission (SEC) accused Michelle Cochran of violating federal accounting standards, as part of a larger investigation into her former employer. Her case was not heard by an independent court, but rather by the SEC’s own Administrative Law Judges (ALJs). These judges were hired by SEC staff in violation of the Appointments Clause. Cochran already had to defend herself in front of an unconstitutional ALJ once, and now the SEC wants her to go through the process a second time before she can ask a court to rule that the ALJs are still unconstitutional.