It is undisputed that the “disgorgement” remedy appears nowhere in the SEC’s enabling statutes. History reveals that the disgorgement remedy was created and expanded by an strategic enforcement and litigation process allowing SEC to arrogate to itself powers not granted by Congress. This process built on each victory with increasing overreach. What was once deemed “ancillary” relief has expanded, as extra-statutory powers are wont to do, to dwarf the actual relief provided by statute, and to make a mockery of what disgorgement means in equity even if such remedy was provided by statute. This plan was observed and followed by other agencies, particularly the Federal Trade Commission (FTC), and error has flowed from the SEC’s overreach to other parts of the Government. This invasive weed was not nipped in the bud and so must be uprooted in its present exotic bloom.

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