SEC's Administrative Enforcement Intensifies Fairness Debate

It is fair to question the process, and it‘s fair to question the standard of proof, and it‘s even fair to criticize the choice of forum, but it is not fair or accurate to question the independence and integrity of federal administrative law judges.

While federal ALJs do not enjoy the same level of independence from removal that Article III judges enjoy, we do enjoy the protections of tenure from termination in the absence of good cause established by the agency after a hearing before the MSPB. While we are paid by the agency, our salaries are set by Congress, and agencies may not rate our performance, or or increase (or decrease) our compensation.

It is both inaccurate and misleading to imply that federal ALJs at the SEC or any other agency are somehow beholden to the agency because the agency processes their paycheck. Article III judges are paid by the United States government, paid by the United States treasury, but no educated lawyer would ever argue that because they receive their payment from the government they are biased toward the government. The premise is as ridiculous as it is without merit and is certainly unworthy of inclusion in a legal journal of this level.