Comment by Mary Ryan
This Comment explores the nondelegation doctrine as it applies to the SEC's forum selection discretion granted in Dodd-Frank and ultimately concludes that when viewed in the light of Chenery II, the SEC should have the discretion to choose between bringing an enforcement action in an administrative proceeding or in a federal court without a congressionally provided intelligible principle. Given that five current Justices have voiced their apparent willingness to revisit the nondelegation doctrine,8 and the Supreme Court has granted certiorari in Jarkesy, this Comment is particularly timely.9
Part II of this Comment provides historical background on the nondelegation doctrine and an overview of the current doctrine. Part III of this Comment delves into the statutory basis for the SEC's forum selection discretion. This section also examines the criticisms levied at the SEC's discretion to give a picture of its place in legal discussion prior to Jarkesy. Part IV examines the case law regarding this discretion and the reaction to one particularly impactful case, Jarkesy. Part V compares the SEC's forum selection power to the discretion permitted in Chenery II in order to suggest that the similarity of the issues points to a path forward for Jarkesy. Part VI briefly concludes.
About the Author
Mary Ryan, J.D. Candidate 2024, Tulane University Law School; B.A. 2016, Fordham University. I would like to thank my advisor Adam Babich for his invaluable guidance and feedback. I would also like to thank my fellow members and the staff of the Tulane Law Review for making this publication possible through their tireless work. Finally, I am forever thankful to my family and friends for their love and support.
Citation
98 Tul. L. Rev. 141