To begin with the obvious, executive-branch agencies like the SEC are not courts established under Article III of the Constitution. These agencies exercise legislative power through rule-making and executive power through prosecution, but the Constitution gives them no judicial power to decide cases and controversies—especially not the very cases they are prosecuting. Executive agencies usurp that judicial power when they shunt penal law-enforcement prosecutions into their own captive administrative hearings.
Nearly 70 years ago, the Administrative Procedures Act established today's system of quasi-judicial tribunals overseen by administrative law judges. But these tribunals are not courts, and the administrative law judges are not life-tenured judicial officers appointed under Article III of the Constitution. They are executive-branch employees who conduct hearings at the direction of agency leaders following procedural rules dictated by the agencies themselves.
Administrative hearings also do not have juries, even when severe financial penalties and forfeitures are demanded. And because these hearings are nominally civil rather than criminal, guilt is determined by a mere preponderance of the evidence—the lightest evidentiary burden known to modern law—rather than beyond reasonable doubt. In short, while administrative prosecutions create the illusion of a fair trial, and while administrative law judges generally strive to appear impartial, these proceedings afford defendants woefully inadequate due process.
More important, the proceedings violate the Constitution's separation of powers. Every phase of the proceeding, and every government official involved, is controlled by the agency in its role as chief prosecutor. The SEC assigns and directs a team of employees to prosecute the case. It assigns another employee, the administrative law judge, to decide guilt or innocence and to impose sanctions. Appeals must be taken to the same SEC commissioners who launched the prosecution, and their decision is typically written by still other SEC employees.
credits to: The Wall Street Journal Online by Russell G. Ryan
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