Congress created and empowered the Securities and Exchange Commission to help enforce U.S. securities laws.
The SEC’s unique structure and broad powers have long been controversial and subjected to constitutional challenges—including one currently being brought by Elon Musk.
Only a few years ago, the U.S. Supreme Court held that the SEC’s mechanism for appointing its in-house administrative law judges—individuals who help resolve disputed matters—violated the Constitution’s Appointments Clause.
Those individuals functioned as officers of the United States, yet neither the president, nor the SEC’s commissioners had appointed them as required by the Constitution. Instead, lower-level staff had done that job.
The Constitution’s Appointments Clause explicitly provides that the president “shall nominate, and by and with the Advice and Consent of the…
