John Marshall Global Markets Law Journal


Jennifer Leung


In order to understand the constitutionality of the SEC’s administrative process, Part II of this Article begins with a history of Article II’s Appointments Clause. Part III describes the competing theories resulting from a circuit split, specifically Hill v. Securities & Exchange Commission and Bebo v. Securities Exchange Commission. Part IV of this Article then evaluates the impact of the Appointments Clause on the Dodd-Frank Act and discusses the consequences of raising meritless constitutional questions that jeopardize the intent of the Dodd-Frank Act. Subsection IV.A. explains the exhaustion doctrine and subsection IV.B. explores Congress’s intent of implementing the Dodd-Frank Act, as well as the SEC’s review. Subsection IV.C. analyzes why SEC ALJs are not considered “Inferior Officers” in the context of Article II. Subsection IV.D. examines subject matter jurisdiction of federal courts over these constitutional questions. Subsection IV.E. confirms that the SEC is an independent agency. Part V discusses the implications of SEC-based litigation in the future. Part VI concludes that the SEC’s administrative process is constitutional.