ALF Amicus Brief Supports Supreme Court Review of “Justice Delayed is Justice Denied” Appeal

By Lawrence S. EbnerAugust 17, 2021

I today filed on behalf of the Atlantic Legal Foundation and the Cato Institute a petition-stage amicus brief supporting the Petitioner in  Axon Enterprise, Inc. v. Federal Trade Commission, No. 21-86.  Ilya Shapiro,  Vice President & Director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies, joined me on the brief as co-counsel.

The question presented is whether a corporate or individual respondent in an FTC (or SEC) administrative enforcement proceeding must be subjected to the litigation burdens, financial costs, and reputational harm attendant to such a proceeding, and then suffer a final adverse administrative judgment, before being able to challenge the structural constitutionality of the proceeding in an Article III court. The separation-of-powers  issue underlying this jurisdictional question arises because the administrative law judges (ALJs) who conduct such proceedings, and their superiors, can be removed from their positions only “for cause” rather than at the discretion of the President.

A copy of the amicus brief is accessible here. Additional background about the case is available on Atlantic Legal Foundation’s website.


Capital Appellate Advocacy founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation.