https://www.wsj.com/articles/supreme-court-axon-v-ftc-sec-v-cochran-administrative-state-federal-court-elena-kagan-43f6b20?mod=opinion_lead_pos2
The Supreme Court on Friday dealt the administrative state another blow with a 9-0 decision holding that individuals and businesses harpooned by an independent agency don’t have to suffer a torturous government adjudication to challenge its constitutionality in federal court (Axon Enterprise v. FTC and SEC v. Cochran).
The private litigants in these cases want to challenge Federal Trade Commission and Securities and Exchange Commission actions on grounds that the agencies are unconstitutionally structured. But the discrete question before the Court was whether they had to run through the agencies’ long and costly administrative process before they could go to federal court.
The government claimed they did, but a unanimous Court disagreed. In the controlling opinion, Justice Elena Kagan explained that both parties in the two cases allege they are “‘being subjected’ to ‘unconstitutional agency authority’—a ‘proceeding by an unaccountable [administrative law judge].’”
“This Court has made clear that it is ‘a here-and-now injury,’” she writes, citing its Seila Law (2020) precedent. “And—here is the rub—it is impossible to remedy once the proceeding is over, which is when appellate review kicks in.” Judicial review after cases are adjudicated by the government “would come too late to be meaningful.”