On August 31, 2020, the New Civil Liberties Alliance filed a Petition for Certiorari in the U.S. Supreme Court on behalf of client Christopher Gibson. It argues that people charged by the U.S. Securities and Exchange Commission should be able to challenge the unconstitutional structure of SEC administrative law judges (ALJs) in the federal courts, without first completing the administrative enforcement process.

This structural challenge stems from Dodd-Frank’s 2010 provision allowing SEC to try a greater number of more serious offenses before its in-house judges. SEC enjoys a distinct home-court advantage before ALJs who are unconstitutionally insulated from removal by multiple layers of for-cause protection. In that cert. petition, NCLA argues that SEC’s scheme systematically violates safeguards that the Framers recognized as “critical to preserving liberty.”

Former Second Circuit Judge Christopher Droney was the first appellate judge to recognize that appellate courts’ refusals to open federal courthouse doors to these claims denied meaningful judicial review to Americans. Recently, in another case brought by NCLA, a second judge in the Fifth Circuit Court of Appeals agreed with Judge Droney, and circuit judges in the Third and Sixth Circuits are also coming around to this logical view.

The Honorable Christopher Droney joins us to discuss the reasoning behind his seminal dissent in Tilton v. SEC and the legal background and precedents that should allow such challenges to be heard first in federal district court.

Peggy Little, Senior Litigation Counsel of NCLA, discusses NCLA’s work across the country on these important structural challenges to administrative law judging, including representation of Ray Lucia on remand from his landmark victory at the Supreme Court, and of Michelle Cochran in the U.S. Court of Appeals for the Fifth Circuit.

Mark Chenoweth, Executive Director and General Counsel of NCLA, moderates the discussion.