Axon Enterprise, Inc. v. FTC

Summary

The statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act do not displace a district court’s federal-question jurisdiction over claims challenging as unconstitutional the structure or existence of the SEC or FTC.

Text

PRELIMINARY PRINT 
Volume 598 U. S. Part 1 
Pages 175–217 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
April 14, 2023 
REBECCA A. WOMELDORF 
reporter of decisions 
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the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

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Syllabus 
AXON ENTERPRISE, INC. v. FEDERAL TRADE 
COMMISSION et al. 
certiorari to the united states court of appeals for 
the ninth circuit 
No. 21–86. Argued November 7, 2022—Decided April 14, 2023* 
Michelle Cochran and Axon Enterprise, Inc.—respondents in separate en-
forcement actions initiated in the Securities and Exchange Commission 
(SEC) and the Federal Trade Commission (FTC)—each fled suit in fed-
eral district court challenging the constitutionality of the agency pro-
ceedings against them. When, as in the enforcement actions against 
Cochran and Axon, a Commission elects to institute administrative pro-
ceedings to address statutory violations, it typically delegates the initial 
adjudication to an Administrative Law Judge (ALJ) with authority to 
resolve motions, hold a hearing, and then issue a decision. As pre-
scribed by statute, a party objecting to the Commission proceedings 
makes its claims frst within the Commission itself, and then (if needed) 
in a federal court of appeals. But the parties here sidestepped that 
review scheme and brought their claims in district court, seeking to 
enjoin the administrative proceedings. Cochran and Axon asserted 
that the tenure protections of the agencies' ALJs render them insuff-
ciently accountable to the President, in violation of separation-of-powers 
principles. Axon also attacked as unconstitutional the combination of 
prosecutorial and adjudicatory functions in the FTC. Each suit prem-
ised jurisdiction on district courts' ordinary federal-question authority 
to resolve “civil actions arising under the Constitution, laws, or treaties 
of the United States.” 28 U. S. C. § 1331. 
Cochran's and Axon's suits initially met the same fate: dismissal for 
lack of jurisdiction. The district court in Cochran's case held that the 
review scheme specifed in the Securities Exchange Act—“administra-
tive review followed by judicial review in a federal court of appeals”— 
“implicitly divest[s] district courts of jurisdiction” over “challenges to 
SEC proceedings,” including Cochran's constitutional ones. Likewise, 
the district court in Axon's case found that the FTC Act's comparable 
review scheme displaces § 1331 jurisdiction for claims concerning the 
*Together with No. 21–1239, Securities and Exchange Commission 
et al. v. Cochran, on certiorari to the United States Court of Appeals for 
the Fifth Circuit.

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FTC's adjudications. On appeal, the Ninth Circuit affrmed the district 
court's dismissal of Axon's constitutional challenges to the FTC proceed-
ing, concluding that the claims were the type that fell within the FTC 
Act's review scheme. But the en banc Fifth Circuit disagreed as to the 
equivalent SEC question, fnding that Cochran's claim would not receive 
“meaningful judicial review” in a court of appeals; that the claim was 
“wholly collateral to the Exchange Act's statutory-review scheme”; and 
that the claim fell “outside the SEC's expertise.” 
Held: The statutory review schemes set out in the Securities Exchange 
Act and Federal Trade Commission Act do not displace a district court's 
federal-question jurisdiction over claims challenging as unconstitutional 
the structure or existence of the SEC or FTC. Pp. 185–196. 
(a) Although district courts may ordinarily hear challenges to federal 
agency actions by way of § 1331's jurisdictional grant for claims “aris-
ing under” federal law, Congress may substitute an alternative review 
scheme. In both the Exchange Act and the FTC Act, Congress did so: 
It provided for review of claims about agency action in a court of appeals 
following the agency's own review process. The creation of such a re-
view scheme divests district courts of their ordinary jurisdiction over 
covered cases. But the statutory scheme does not necessarily extend 
to every claim concerning agency action. See, e. g., Thunder Basin 
Coal Co. v. Reich, 510 U. S. 200, 207–213. This Court has identifed 
three considerations—commonly known as the Thunder Basin factors— 
to determine whether particular claims concerning agency action are 
“of the type Congress intended to be reviewed within th[e] statutory 
structure.” Id., at 212. First, could precluding district court jurisdic-
tion “foreclose all meaningful judicial review” of the claim? Id., at 
212–213. Next, is the claim “wholly collateral” to the statute's review 
provisions? Id., at 212. And last, is the claim “outside the agency's 
expertise”? Ibid. 
The Court has twice held specifc claims to ft within a statutory re-
view scheme, based on the Thunder Basin factors. In Thunder Basin 
itself, a coal company subject to the Mine Act fled suit in district court 
instead of asserting its claims—as a statutory scheme prescribed—frst 
before a mine safety commission and then (if needed) a court of appeals. 
The crux of the dispute concerned the company's refusal to provide 
employee-designated union offcials with access to the workplace in ac-
cordance with the Mine Act. The company also objected on due process 
grounds to the agency's imposition of a fne before holding a hearing. 
See id., at 205. The Court held that the district court lacked jurisdic-
tion over those claims, emphasizing the commission's “extensive experi-
ence” in addressing the statutory issues raised, as well as its ability to

Cite as: 598 U. S. 175 (2023) 177 
Syllabus 
resolve them in light of its “expertise” over the mining industry. Id., 
at 214–215. The Court acknowledged the company's constitutional 
challenge was less tied to the agency's experience and expertise, but 
concluded it could be “meaningfully addressed in the Court of Appeals.” 
Id., at 215. 
The Court applied similar reasoning in Elgin v. Department of Treas-
ury, 567 U. S. 1, which involved a statutory review scheme that directed 
federal employees challenging discharge decisions to seek review in the 
Merit Systems Protection Board (MSPB) and then, if needed, in the 
Federal Circuit. Elgin fled suit in district court when the government 
fred him for failing to register for the draft. This Court held that the 
district court lacked jurisdiction even though Elgin mainly claimed that 
the draft's exclusion of women violated the Equal Protection Clause. 
Although the MSPB might not be able to hold the draft law unconsti-
tutional, the Court of Appeals could—and that was suffcient to ensure 
“meaningful review” of Elgin's claim. Id., at 21. Further, Elgin's 
challenge to his discharge was neither collateral to the MSPB's ordinary 
proceedings nor unrelated to its expertise in the employment context. 
In contrast, the Court in Free Enterprise Fund v. Public Company 
Accounting Oversight Bd., 561 U. S. 477, applied the Thunder Basin 
factors to determine that an accounting frm's Article II chal-
lenge to the structure of the Public Company Accounting Oversight 
Board—an agency regulating the accounting industry under the SEC's 
oversight—landed outside the Exchange Act's review scheme. Because 
not all Board action culminates in Commission action—which alone the 
statute makes reviewable in a court of appeals—the Court determined 
that the Exchange Act provided no “meaningful avenue of relief.” 561 
U. S., at 490–491. And even if the SEC took up a matter arising from 
the Board's investigation of the frm, the frm's constitutional challenge 
to the Board's existence would be “collateral” to the subject of that 
proceeding, as well as “outside the Commission's competence and exper-
tise.” Ibid. Pp. 185–188. 
(b) The Court must decide if the constitutional claims here are “of 
the type” Congress thought belonged within a statutory review scheme. 
Thunder Basin, 510 U. S., at 212. Like the accounting frm in Free 
Enterprise Fund, Cochran and Axon assert sweeping constitutional 
claims: They charge that the SEC and FTC are wielding authority un-
constitutionally in all or broad swaths of their work. Applying the 
Thunder Basin factors here, the Court comes out in the same place as 
in Free Enterprise Fund. 
First, preclusion of district court jurisdiction “could foreclose all 
meaningful judicial review.” Thunder Basin, 510 U. S., at 212–213. 
Adequate judicial review does not usually demand a district court's 
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178 
 AXON ENTERPRISE, INC. v. FTC 
Syllabus 
involvement. And the statutes at issue in this case provide for judicial 
review of adverse SEC and FTC actions in a court of appeals. But 
Cochran and Axon assert a “here-and-now injury” from being subjected 
to an illegitimate proceeding, led by an illegitimate decisionmaker. 
Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 
–––, –––. That injury is impossible to remedy once the proceeding is 
over, which is when appellate review kicks in. Judicial review of the 
structural constitutional claims would thus come too late to be meaning-
ful. To be sure, “the expense and disruption” of “protracted adjudica-
tory proceedings” on a claim do not alone justify immediate review. 
FTC v. Standard Oil Co. of Cal., 449 U. S. 232, 244. But the nature of 
the injury here is different: As with a right “not to stand trial” that is 
“effectively lost” if review is deferred until after trial, see Mitchell v. 
Forsyth, 472 U. S. 511, 526, Axon and Cochran will lose their rights not 
to undergo the complained-of agency proceedings if they cannot assert 
those rights until the proceedings are over. 
The collateralism factor also favors Axon and Cochran. The chal-
lenges to the Commissions' authority have nothing to do with either the 
enforcement-related matters the Commissions regularly adjudicate or 
those they would adjudicate in assessing the charges against Axon and 
Cochran. Elgin, 567 U. S., at 22. The parties' claims are thus “ `collat-
eral' to any Commission orders or rules from which review might be 
sought.” Free Enterprise Fund, 561 U. S., at 490. 
Finally, Cochran's and Axon's claims are “outside the [Commissions'] 
expertise.” Thunder Basin, 510 U. S., at 212. The Court in Free En-
terprise Fund determined that claims that tenure protections violate 
Article II raise “standard questions of administrative” and constitu-
tional law, detached from “considerations of agency policy.” 561 U. S., 
at 491 (internal quotation marks and alterations omitted). That state-
ment covers Axon's and Cochran's claims that ALJs are too far insulated 
from the President's removal authority. And Axon's constitutional 
challenge to the combination of prosecutorial and adjudicative functions 
in the FTC is similarly distant from the FTC's “competence and exper-
tise.” Ibid. The Commission knows a good deal about competition 
policy, but nothing special about the separation of powers. For that 
reason, “agency adjudications are generally ill suited to address struc-
tural constitutional challenges”—like those maintained here. Carr v. 
Saul, 593 U. S. –––, –––. The Court concludes that the claims here are 
not the type the statutory review schemes at issue reach. Pp. 188–196. 
No. 21–86, 986 F. 3d 1173, reversed and remanded; No. 21–1239, 20 F. 4th 
194, affrmed and remanded. 
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., 
and Thomas, Alito, Sotomayor, Kavanaugh, Barrett, and Jack-

179 
Cite as: 598 U. S. 175 (2023) 
Syllabus 
son, JJ., joined. Thomas, J., fled a concurring opinion, post, p. 196. Gor-
such, J., fled an opinion concurring in the judgment, post, p. 204. 
Paul D. Clement argued the cause for petitioner in No. 21– 
86. With him on the briefs were Erin E. Murphy, Matthew 
D. Rowen, and Pamela D. Petersen. 
Deputy Solicitor General Stewart argued the cause for the 
federal parties in both cases. With him on the brief were 
Solicitor General Prelogar , Principal Deputy Assistant At-
torney General Boynton, Vivek Suri, Mark B. Stern, Joshua 
M. Salzman, Daniel Aguilar , Anisha S. Dasgupta, Joel 
Marcus, Imad Dean Abyad, Dan M. Berkovitz, Michael A. 
Conley, Dominick V. Freda, and Daniel Staroselsky. 
Gregory G. Garre argued the cause for respondent in No. 
21–1239. With him on the briefs were Charles S. Dameron, 
Blake E. Stafford, Margaret A. Little, Markham S. Cheno-
weth, Richard A. Samp, Kara M. Rollins, and Russell G. 
Ryan.† 
†Briefs of amici curiae urging reversal in No. 21–86 were fled for the 
American Hospital Association by Mark R. Yohalem and Steffen N. John-
son; for the Committee for Justice by J. Michael Connolly; for the Justice 
Society by Holly A. Pierson; for the National Treasury Employees Union 
by Julie M. Wilson, Paras N. Shah, and Allison C. Giles; and for the 
Separation of Powers Clinic at Antonin Scalia Law School by Jennifer L. 
Mascott and R. Trent McCotter . 
Briefs of amici curiae urging reversal in No. 21–86 and affrmance in 
No. 21–1239 were fled for the Americans for Prosperity Foundation by 
Michael Pepson and Cynthia Fleming Crawford; for the Atlantic Legal 
Foundation by Lawrence S. Ebner; for the Chamber of Commerce of the 
United States of America by Sarah M. Harris; and for the Washington 
Legal Foundation et al. by John M. Masslon II and Cory L. Andrews. 
Briefs of amici curiae urging affrmance in No. 21–1239 were fled for 
the Cato Institute by Clark M. Neily III; for Citizens United et al. by 
Michael Boos, Daniel H. Jorjani, and Gary M. Lawkowski; for the Insti-
tute for Justice by Jared McClain, Robert E. Johnson, and Paul V. Avelar; 
for the Pacifc Legal Foundation by John F. Kerkhoff and Aditya Dynar; 
for Phillip Goldstein et al. by Nicolas Morgan; and for Raymond J. Lucia, 
Sr., et al. by Kellam M. Conover . 
Briefs of amici curiae were fled in No. 21–86 for the American Anti-
trust Institute by Randy M. Stutz; and for the Pacifc Legal Foundation 
by John F. Kerkhoff and Oliver J. Dunford. 
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Opinion of the Court 
Justice Kagan delivered the opinion of the Court. 
In each of these two cases, the respondent in an adminis-
trative enforcement action challenges the constitutional au-
thority of the agency to proceed. Both respondents claim 
that the agencies' administrative law judges (ALJs) are in-
suffciently accountable to the President, in violation of sepa-
ration-of-powers principles. And one respondent attacks as 
well the combination of prosecutorial and adjudicatory func-
tions in a single agency. The challenges are fundamental, 
even existential. They maintain in essence that the agen-
cies, as currently structured, are unconstitutional in much of 
their work. 
Our task today is not to resolve those challenges; rather, 
it is to decide where they may be heard. The enforcement 
actions at issue were initiated in the Securities and Ex-
change Commission (SEC) and the Federal Trade Commis-
sion (FTC). Most objections to those Commissions' pro-
ceedings follow a well-trod path. As prescribed by statute, 
a party makes its claims frst within the Commission itself, 
and then (if needed) in a federal court of appeals. The par-
ties here, however, sidestepped that review scheme. Seek-
ing to stop the administrative proceedings, they instead 
brought their claims in federal district court. The question 
presented is whether the district courts have jurisdiction to 
hear those suits—and so to resolve the parties' constitutional 
challenges to the Commissions' structure. The answer is 
yes. The ordinary statutory review scheme does not pre-
clude a district court from entertaining these extraordinary 
claims. 
I 
Congress established the SEC to protect investors in secu-
rities markets, and created the FTC to promote fair competi-
tion. The Commissions enforce, respectively, the Securities 
Exchange Act and the FTC Act (among other laws). See 15 
U. S. C. § 78a et seq. (Exchange Act); 15 U. S. C. § 41 et seq. 
(FTC Act). Those Acts authorize the Commissions to ad-
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dress statutory violations either by bringing civil suits in fed-
eral district court or by instituting their own administrative 
proceedings. See §§ 78u(d), 78u–1, 78u–2, 78u–3; §§ 45(b), (m). 
When a Commission elects the latter option—as in these 
two cases—it typically delegates the initial adjudication to 
an ALJ. See § 78d–1(a); note following § 41. To foster inde-
pendence, each Commission's ALJs are removable “only for 
good cause” as determined by the Merit Systems Protection 
Board (MSPB)—a separate agency whose members are 
themselves removable by the President only for cause, such 
as “neglect of duty” or “malfeasance.” 5 U. S. C. §§ 7521(a), 
1202(d). An ALJ assigned to hear an SEC or FTC enforce-
ment action has authority, much like a regular trial judge, to 
resolve motions, hold a hearing, and then issue a decision. 
See 16 CFR §§ 3.21–3.56 (2021); 17 CFR §§ 201.221–201.360 
(2021). 
A losing party may appeal the ALJ's ruling to the Com-
mission; alternatively, the Commission may undertake re-
view on its own initiative. See 16 CFR §§ 3.52–3.53; 17 CFR 
§§ 201.410–201.411. Upon completion of internal review, the 
Commission enters a fnal decision. See 16 CFR § 3.54; 17 
CFR § 201.411(a). Or if no such review has occurred, the 
ALJ's ruling itself becomes the decision of the Commission. 
See 15 U. S. C. § 78d–1(c); 16 CFR § 3.51(a). 
The Exchange Act and FTC Act both provide for review 
of a fnal Commission decision in a court of appeals, rather 
than a district court. Under the Exchange Act, “[a] person 
aggrieved by [an SEC] fnal order . . . may obtain review of 
the order” by fling a petition in a court of appeals. 15 
U. S. C. § 78y(a)(1). That petition gives the appellate court 
“jurisdiction” to “affrm or modify and enforce or to set aside 
the order in whole or in part.” § 78y(a)(3). The FTC Act 
similarly provides that the party subject to an FTC order 
may “obtain a review of such order” in a court of appeals, 
and grants the court “jurisdiction” to “affrm[ ], modify[ ], or 
set[ ] aside the order.” § 45(c). 
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The cases before us, though, did not take the above-
described course. In each, the respondent in an administra-
tive enforcement action sued in district court prior to an ALJ 
decision, seeking to enjoin the Commission's proceeding. 
Each suit charged that some fundamental aspect of the Com-
mission's structure violates the Constitution; that the viola-
tion made the entire proceeding unlawful; and that being 
subjected to such an illegitimate proceeding causes legal in-
jury (independent of any rulings the ALJ might make). 
Finally, each suit premised jurisdiction on district courts' 
ordinary federal-question authority—their power, under 
28 U. S. C. § 1331, to resolve “civil actions arising under 
the Constitution, laws, or treaties of the United States.” 
We describe the two cases in turn, but what we have 
just said they have in common is really all it is necessary 
to know. 
The frst case arises from an SEC enforcement action 
brought against Michelle Cochran, a certifed public account-
ant. In an earlier round of that proceeding, an ALJ found 
that Cochran had failed to comply with auditing standards, in 
violation of the Exchange Act. But soon after that decision 
issued, this Court held that the SEC's ALJs had been im-
properly appointed. See Lucia v. SEC, 585 U. S. –––, ––– 
(2018). In compliance with that ruling, the SEC ordered a 
fresh hearing, conducted by a now validly appointed ALJ. 
That was the last straw for Cochran. Before the new ALJ 
hearing began, she sued the Commission in federal district 
court, asserting jurisdiction under § 1331. Cochran's com-
plaint focused on the two layers of tenure protection all ALJs 
hold: By statute, those offcials may be removed only “for 
good cause as determined by the [MSPB], whose members 
themselves can only be removed by the President for good 
cause.” App. 60; see supra, at 181. That arrangement, 
Cochran asserted, so greatly insulates ALJs from presiden-
tial supervision as to violate the separation of powers—more 
specifcally, Article II's vesting of executive power in the 
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President. See App. 53–54, 60–62. And because that was 
true (Cochran continued), ALJs could not constitutionally ex-
ercise power: They could neither hold any hearings nor make 
any decisions. Cochran thus sought declaratory and injunc-
tive relief freeing her of the obligation “to submit to an un-
constitutional proceeding.” Id., at 60; see id., at 64. 
The second case arises from an FTC enforcement action 
against Axon Enterprise, a company that makes and sells 
policing equipment. In its complaint, the FTC alleged that 
Axon's purchase of its closest competitor violated the FTC 
Act's ban on unfair methods of competition. To stop the 
FTC from pursuing that charge, Axon did just what Cochran 
had—brought suit against the Commission in district court, 
premised on federal-question jurisdiction. Like Cochran, 
Axon asserted that the Commission's ALJs could not consti-
tutionally exercise governmental authority because of their 
dual-layer protection from removal. In addition, Axon 
claimed that the combination of prosecutorial and adjudica-
tive functions in the Commission renders all of its enforce-
ment actions unconstitutional. See Complaint in No. 2:20– 
cv–00014 (D Ariz.), ECF Doc. 1, p. 26 (protesting that “the 
FTC will act as prosecutor, judge, and jury”). Again simi-
larly to Cochran, Axon asked the court to enjoin the FTC 
“from subjecting” it to the Commission's “unfair and uncon-
stitutional internal forum.” Id., at 7; see id., at 28.
1 
1 In this Court, Axon contends that it separately objected to “the uncodi-
fed, black-box `clearance' process” used to determine whether the FTC or 
the Department of Justice will investigate a merger. Brief for Axon 13. 
We do not read the complaint that way. In count I, Axon raised the 
combination-of-functions claim; in count II, it raised the removal claim; 
and in count III, it asserted the view (not at issue here) that it did not 
violate the antitrust laws. See Complaint in No. 2:20–cv–00014 (D Ariz.), 
pp. 26–28. The single paragraph criticizing the clearance process appears 
only as background to Axon's dual constitutional claims. Accord, 986 
F. 3d 1173, 1181, n. 3 (CA9 2021) (case below) (noting that the three claims 
Axon pushed on appeal “do not line up with” Axon's complaint). We 
therefore do not address the clearance-process issue. 
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Cochran's and Axon's suits met an identical fate in district 
court: dismissal for lack of jurisdiction. The district court 
in Cochran's case held that the review scheme specifed in the 
Exchange Act—“administrative review followed by judicial 
review in a federal court of appeals”—“implicitly divest[s] 
district courts of jurisdiction” over “challenges to SEC pro-
ceedings,” including Cochran's constitutional ones. App. to 
Pet. for Cert. in No. 21–1239, p. 141a. Likewise, the district 
court in Axon's case found that the FTC Act's comparable 
review scheme displaces § 1331 jurisdiction for claims con-
cerning the FTC's adjudications. So Axon had to raise its 
structural constitutional claims “during the administrative 
process and then renew them” if and when “seeking review 
in the Court of Appeals.” App. to Pet. for Cert. in No. 21– 
86, pp. 50–51. 
On appeal from those decisions, the United States Courts 
of Appeals for the Fifth and Ninth Circuits split. The Ninth 
Circuit, considering Axon's case, reached the same conclusion 
as the district courts. See 986 F. 3d 1173 (2021). Review-
ing this Court's precedents, the Ninth Circuit acknowledged 
that a statutory review scheme precluding district court ju-
risdiction—like the FTC Act's—might not extend to every 
“type of claim[ ].” Id., at 1187 (citing Thunder Basin Coal 
Co. v. Reich, 510 U. S. 200, 212 (1994)). But the court de-
cided that Axon's constitutional challenges fell within the 
FTC Act's scheme, mainly because the scheme guaranteed 
them “meaningful judicial review.” 986 F. 3d, at 1181, 1187. 
The en banc Fifth Circuit disagreed as to the equivalent SEC 
question. See 20 F. 4th 194 (2021). The court maintained 
that “Cochran's removal power claim is not the type of claim 
Congress intended to funnel through the Exchange Act's 
statutory-review scheme.” Id. , at 206–207 (also citing 
Thunder Basin, 510 U. S., at 212). Drawing on considera-
tions identifed in this Court's opinions, the Fifth Circuit rea-
soned that Cochran's claim would not receive “meaningful 
judicial review” in a court of appeals; that the claim was 
“wholly collateral to the Exchange Act's statutory-review 
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185 
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scheme”; and that the claim fell “outside the SEC's exper-
tise.” 20 F. 4th, at 207–208. 
We granted certiorari in both cases to resolve the division. 
595 U. S. ––– (2022); 596 U. S. ––– (2022). We now conclude 
that the review schemes set out in the Exchange Act and the 
FTC Act do not displace district court jurisdiction over 
Axon's and Cochran's far-reaching constitutional claims. 
II 
A 
A special statutory review scheme, this Court has recog-
nized, may preclude district courts from exercising jurisdic-
tion over challenges to federal agency action. See, e. g., 
Thunder Basin, 510 U. S., at 207. District courts may ordi-
narily hear those challenges by way of 28 U. S. C. § 1331's 
grant of jurisdiction for claims “arising under” federal law. 
Congress, though, may substitute for that district court au-
thority an alternative scheme of review. Congress of course 
may do so explicitly, providing in so many words that district 
court jurisdiction will yield. But Congress also may do 
so implicitly, by specifying a different method to resolve 
claims about agency action. The method Congress typically 
chooses is the one used in both the Exchange Act and the 
FTC Act: review in a court of appeals following the agency's 
own review process. We have several times held that the 
creation of such a review scheme for agency action divests 
district courts of their ordinary jurisdiction over the covered 
cases. See Thunder Basin, 510 U. S., at 207–212; Elgin v. 
Department of Treasury , 567 U. S. 1, 10–15 (2012); see also 
Free Enterprise Fund v. Public Company Accounting Over-
sight Bd., 561 U. S. 477, 489 (2010) (noting that statutory 
schemes for agency review “[g]enerally” are “exclusive”). 
The agency effectively flls in for the district court, with the 
court of appeals providing judicial review. 
But a statutory review scheme of that kind does not neces-
sarily extend to every claim concerning agency action. Our 
decision in Thunder Basin made that point clear. After 
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Opinion of the Court 
fnding that Congress's creation of a “comprehensive review 
process” like the ones here ousted district courts of jurisdic-
tion, the Court asked another question: whether the particu-
lar claims brought were “of the type Congress intended 
to be reviewed within this statutory structure.” 510 U. S., 
at 208, 212. The Court identifed three considerations de-
signed to aid in that inquiry, commonly known now as the 
Thunder Basin factors. First, could precluding district 
court jurisdiction “foreclose all meaningful judicial review” 
of the claim? Id., at 212–213. Next, is the claim “wholly 
collateral to [the] statute's review provisions”? Id., at 212 
(internal quotation marks omitted). And last, is the claim 
“outside the agency's expertise”? Ibid. When the answer 
to all three questions is yes, “we presume that Congress does 
not intend to limit jurisdiction.” Free Enterprise Fund, 561 
U. S., at 489. But the same conclusion might follow if the 
factors point in different directions. The ultimate question 
is how best to understand what Congress has done—whether 
the statutory review scheme, though exclusive where it 
applies, reaches the claim in question. The frst Thunder 
Basin factor recognizes that Congress rarely allows claims 
about agency action to escape effective judicial review. See, 
e. g., Bowen v. Michigan Academy of Family Physicians, 
476 U. S. 667, 670 (1986). The second and third refect in 
related ways the point of special review provisions—to give 
the agency a heightened role in the matters it customarily 
handles, and can apply distinctive knowledge to. 
This Court has twice held specifc claims to ft within a 
statutory review scheme, based on the Thunder Basin fac-
tors. In Thunder Basin itself, a coal company subject to the 
Mine Act fled suit in district court instead of asserting its 
claims—as a statutory scheme prescribed—before a mine 
safety commission and then (if needed) a court of appeals. 
The crux of the dispute concerned the company's refusal to 
provide employee-designated union offcials with access to 
the workplace, as the Mine Act apparently required. The 
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Opinion of the Court 
company claimed a right to exclude the offcials under an-
other statute; it also objected on due process grounds to the 
agency's imposing a fne before holding a hearing. See 510 
U. S., at 205; see also Elgin, 567 U. S., at 17, n. 6. We held 
the district court to lack jurisdiction over those claims, and 
thus directed the company back to the statutory review 
scheme. The Commission, we emphasized, had “extensive 
experience” in addressing the statutory issues raised, and 
could resolve them in ways that “brought to bear” its “exper-
tise” over the mining industry. 510 U. S., at 214–215; see 
Free Enterprise Fund, 561 U. S., at 491. All that was less 
so, we acknowledged, of the company's constitutional chal-
lenge; but that claim could be “meaningfully addressed in the 
Court of Appeals.” 510 U. S., at 215. 
We applied similar reasoning in Elgin. The statutory re-
view scheme there directed federal employees challenging 
discharge decisions to seek review in the MSPB and then, if 
needed, in the Federal Circuit (a specifc court of appeals). 
But Elgin fled suit in district court when he was fred by 
the government for failing to register for the draft. We 
held that the court lacked jurisdiction even though Elgin 
mainly claimed that the draft law, in excluding women, vio-
lated the Equal Protection Clause. Although the MSPB 
might not be able to hold the draft law unconstitutional, we 
stated, the Court of Appeals could—and that was suffcient 
to ensure “meaningful review” of Elgin's claim. 567 U. S., 
at 21. Still more, Elgin's claim was neither collateral to the 
MSPB's ordinary proceedings nor unrelated to its expertise. 
We reasoned that a “challenge to [a discharge] is precisely 
the type of personnel action regularly adjudicated by the 
MSPB.” Id., at 22. And we observed that such an act-
ion could involve “threshold” and other “questions unique 
to the employment context” that “fall[ ] squarely within the 
MSPB's expertise.” Id., at 22–23. 
But in Free Enterprise Fund, this Court went the oppo-
site way, holding that certain claims landed outside a statu-
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Opinion of the Court 
tory review scheme. The scheme was the Exchange Act's— 
the same as in Cochran's case. And the main claim in Free 
Enterprise Fund bears more than a passing resemblance to 
one Axon and Cochran raise: It, too, alleged that offcials 
with two layers of tenure protection were unconstitutionally 
insulated from presidential control. The offcials challenged, 
though, were different. They were members of the Public 
Company Accounting Oversight Board—an agency regulat-
ing the accounting industry under the SEC's oversight. 
When the Board opened an investigation of an accounting 
frm's auditing practices, the frm took its Article II claim to 
district court. This time we held that the court had juris-
diction of the action, based on the Thunder Basin factors. 
We found that the Exchange Act provided no “meaningful 
avenue of relief” for the frm, given the separation between 
the Board and the Commission. 561 U. S., at 490–491 (inter-
nal quotation marks omitted). Not every Board action, we 
explained, culminates in Commission action—which alone 
the statute makes reviewable in a court of appeals. And 
even supposing the SEC took up a matter arising from the 
Board's investigation, the frm's constitutional challenge 
would be “collateral” to the subject of that proceeding. The 
frm, we observed, “object[s] to the Board's existence, not to 
any of its auditing standards.” Id., at 490. Finally, we 
held, the frm's claim was “outside the Commission's compe-
tence and expertise.” Id., at 491. It raised only a “stand-
ard” issue of administrative and constitutional law, relating 
not at all to “considerations of agency policy.” Ibid. (inter-
nal quotation marks and alterations omitted). 
B 
One way of framing the question we must decide is 
whether the cases before us are more like Thunder Basin 
and Elgin or more like Free Enterprise Fund. The answer 
appears from 30,000 feet not very hard. Recall our task: to 
decide if a claim is “of the type” Congress thought belonged 
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within a statutory scheme. Thunder Basin, 510 U. S., at 
212. The claims here are of the same ilk as the one in Free 
Enterprise Fund. There, the complaint alleged that the 
Board's “freedom from Presidential oversight” rendered un-
constitutional “all power and authority [the Board] exer-
cised.” 561 U. S., at 508 (internal quotation marks omitted). 
Only the Court's ability to sever the relevant statute's for-
cause removal provision enabled the Board to keep running. 
See ibid. The Article II challenges in Axon's and Cochran's 
cases would likewise prevent ALJs—through whom the 
Commissions do much of their work—from exercising any 
power, unless they lose their double-for-cause tenure protec-
tion. And Axon's combination-of-functions claim similarly 
goes to the core of the FTC's existence, given that the 
agency indeed houses (and by design) both prosecutorial 
and adjudicative activities. The challenges here, as in Free 
Enterprise Fund, are not to any specifc substantive deci-
sion—say, to fning a company (Thunder Basin) or fring an 
employee (Elgin). Nor are they to the commonplace proce-
dures agencies use to make such a decision. They are in-
stead challenges, again as in Free Enterprise Fund, to the 
structure or very existence of an agency: They charge that 
an agency is wielding authority unconstitutionally in all or a 
broad swath of its work. Given that equivalence, it would 
be surprising to treat the claims here differently from the 
one in Free Enterprise Fund—which we held belonged in 
district court. 
And when we apply the Thunder Basin factors, we indeed 
come out in the same place as Free Enterprise Fund. Our 
reasoning differs in some particulars, refecting variations 
between that case and the two here. But the 30,000-foot 
view of the issue before us ends up a good proxy for the 
more granular one. Each of the three Thunder Basin fac-
tors signals that a district court has jurisdiction to adjudi-
cate Axon's and Cochran's (like the accounting frm's) sweep-
ing constitutional claims. 
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We begin with the factor whose application here is least 
straightforward: whether preclusion of district court juris-
diction “could foreclose all meaningful judicial review.” 
Thunder Basin, 510 U. S., at 212–213. Thunder Basin and 
Elgin both make clear that adequate judicial review does not 
usually demand a district court's involvement. Review of 
agency action in a court of appeals can alone “meaningfully 
address[ ]” a party's claims. Thunder Basin, 510 U. S., at 
215; see Elgin, 567 U. S., at 21 (holding that Congress pro-
vided “meaningful review” in authorizing the Federal Circuit 
“to consider and decide petitioners' constitutional claims”).
2 
Still more, we agree with the Government that the reason 
Free Enterprise Fund gave for departing from Thunder 
Basin and Elgin on the judicial review issue does not apply 
to the cases before us. See Brief for Federal Parties 39–40. 
As just described, Free Enterprise Fund's analysis on that 
score relied on the separation between the Board and the 
SEC. See supra, at 188. The accounting frm, recall, was 
enmeshed in a Board investigation. But some Board actions 
never go to the SEC—and the statutory scheme, we ex-
plained, “provides only for judicial review of Commission ac-
tion.” 561 U. S., at 490 (emphasis in original). That meant 
the accounting frm, absent district court jurisdiction, might 
never have had judicial recourse. But no such worry exists 
here. Cochran and Axon are parties in ongoing SEC and 
FTC proceedings, and the statutes at issue provide for judi-
cial review of SEC and FTC action. See 15 U. S. C. §§ 45(c), 
78y(a). Under those statutes, Axon and Cochran can (even-
2 That is so, as both decisions held, even if the agency itself could not 
have considered or remedied the party's claim—for example, when the 
agency lacks the power to “declare a statute unconstitutional.” Elgin, 
567 U. S., at 17; see Thunder Basin, 510 U. S., at 215. It is also so, as 
Thunder Basin illustrates, regardless of whether the claim involves a mat-
ter of substance (e. g., the coal company's alleged right to exclude union 
offcials) or one of procedure (e. g., the company's asserted entitlement to 
an earlier hearing). See id., at 214–215; supra, at 186–187. 
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tually) obtain review of their constitutional claims through 
an appeal from an adverse agency action to a court of ap-
peals. So Free Enterprise Fund's analysis of the judicial 
review factor does not control. 
Yet a problem remains, stemming from the interaction be-
tween the alleged injury and the timing of review. To see 
the diffculty, think frst about Thunder Basin and Elgin. If 
an appellate court had ruled in favor of the coal company 
or the federal employee on review of an agency decision, 
the court could have remedied the party's injury. It could 
have revoked the fne assessed on the company or reinstated 
the employee with backpay. But not so here. The harm 
Axon and Cochran allege is “being subjected” to “unconstitu-
tional agency authority”—a “proceeding by an unaccountable 
ALJ.” Brief for Axon 36; see Brief for Cochran 37 (contend-
ing she suffers harm from “having to appear in proceedings” 
before an unconstitutionally insulated ALJ). That harm 
may sound a bit abstract; but this Court has made clear that 
it is “a here-and-now injury.” Seila Law LLC v. Consumer 
Financial Protection Bureau, 591 U. S. –––, ––– (2020) (in-
ternal quotation marks omitted). And—here is the rub—it 
is impossible to remedy once the proceeding is over, which is 
when appellate review kicks in. Suppose a court of appeals 
agrees with Axon, on review of an adverse FTC decision, 
that ALJ-led proceedings violate the separation of powers. 
The court could of course vacate the FTC's order. But 
Axon's separation-of-powers claim is not about that order; 
indeed, Axon would have the same claim had it won before 
the agency. The claim, again, is about subjection to an ille-
gitimate proceeding, led by an illegitimate decisionmaker. 
And as to that grievance, the court of appeals can do nothing: 
A proceeding that has already happened cannot be undone. 
Judicial review of Axon's (and Cochran's) structural constitu-
tional claims would come too late to be meaningful. 
The limits of that conclusion are important to emphasize. 
The Government, in disputing our position, notes that many

192 
 AXON ENTERPRISE, INC. v. FTC 
Opinion of the Court 
review schemes—involving not only agency action but also 
civil and criminal litigation—require parties to wait before 
appealing, even when doing so subjects them to “signifcant 
burdens.” Brief for Federal Parties 47–49. That is true, 
and will remain so: Nothing we say today portends newfound 
enthusiasm for interlocutory review. Return, for example, 
to Thunder Basin and Elgin. There, the coal company and 
federal employee could both have argued that the statutory 
review process would subject them to greater litigation costs 
than their preferred suit in district court. But that would 
not have mattered. We have made clear, just as the Govern-
ment says, that “the expense and disruption” of “protracted 
adjudicatory proceedings” on a claim do not justify immedi-
ate review. FTC v. Standard Oil Co. of Cal., 449 U. S. 232, 
244 (1980); see, e. g., Myers v. Bethlehem Shipbuilding Corp., 
303 U. S. 41, 51 (1938). What makes the difference here is 
the nature of the claims and accompanying harms that the 
parties are asserting. Again, Axon and Cochran protest the 
“here-and-now” injury of subjection to an unconstitutionally 
structured decisionmaking process. See supra, at 191. 
And more, subjection to that process irrespective of its out-
come, or of other decisions made within it. A nearer anal-
ogy than any the Government offers is to our established 
immunity doctrines. There, we have identifed certain 
rights “not to stand trial” or face other legal processes. 
Mitchell v. Forsyth, 472 U. S. 511, 526 (1985). And we have 
recognized that those rights are “effectively lost” if review 
is deferred until after trial. Ibid. So too here, Axon and 
Cochran will lose their rights not to undergo the complained-
of agency proceedings if they cannot assert those rights until 
the proceedings are over. 
The collateralism factor favors Axon and Cochran for 
much the same reason—because they are challenging the 
Commissions' power to proceed at all, rather than actions 
taken in the agency proceedings. That distinction, as noted 
earlier, guided Free Enterprise Fund's view that the ac-
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Opinion of the Court 
counting frm's challenge qualifed as “collateral.” See 561 
U. S., at 490; supra, at 188. The frm, the court reasoned, 
“object[ed] to the Board's existence, not to any of [the] audit-
ing standards” it might apply in regulating accountants. 
561 U. S., at 490. Likewise here, both parties object to 
the Commissions' power generally, not to anything partic-
ular about how that power was wielded. The parties' 
separation-of-powers claims do not relate to the subject of 
the enforcement actions—in the one case auditing practices, 
in the other a business merger. Cf. Mohawk Industries, 
Inc. v. Carpenter, 558 U. S. 100, 106 (2009) (considering as 
part of the “collateral order doctrine,” which governs ap-
peals in non-agency litigation, whether a question is “sepa-
rate from the merits”). Nor do the parties' claims address 
the sorts of procedural or evidentiary matters an agency 
often resolves on its way to a merits decision. Cf. Florida 
Power & Light Co. v. Lorion, 470 U. S. 729, 743 (1985) (favor-
ing review of such preliminary matters along with the 
agency's fnal order). The claims, in sum, have nothing to 
do with the enforcement-related matters the Commissions 
“regularly adjudicate[ ]”—and nothing to do with those they 
would adjudicate in assessing the charges against Axon and 
Cochran. Elgin, 567 U. S., at 22. Because that is so, the 
parties' claims are “ `collateral' to any Commission orders or 
rules from which review might be sought.” Free Enter-
prise Fund, 561 U. S., at 490. 
The Government's contrary argument would strip the col-
lateralism factor of its appropriate function. In the Govern-
ment's view, no claim “directed at” a pending Commission 
proceeding can qualify as collateral to it, even if wholly dis-
connected in subject. Tr. of Oral Arg. in No. 21–86, p. 75; 
see Brief for Federal Parties 39, 52–53. The Government 
thinks that position consistent with Free Enterprise Fund 
because there an SEC proceeding had not yet begun. See 
Brief for Federal Parties 38–39 (noting that the accounting 
frm remained enmeshed in a Board investigation). But the 
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194 AXON ENTERPRISE, INC. v. FTC 
Opinion of the Court 
Government's argument still conficts with Free Enterprise 
Fund's reasoning. In addressing why the frm's claim was 
collateral, the Court focused solely on what it was about— 
again, that the frm challenged “the Board's existence,” not 
“its auditing standards.” 561 U. S., at 490. And anyway, 
the Government's theory ill fts the point of the Thunder 
Basin inquiry—to decide when a particular claim is “of the 
type” to fall outside a statutory review scheme. 510 U. S., 
at 212. That inquiry, just as Free Enterprise Fund recog-
nized, requires considering the nature of the claim, not the 
status (pending or not) of an agency proceeding. Or said 
another way, the inquiry contemplates (as our collateral-
order doctrine also does) that even when a proceeding is 
pending, an occasional claim may get immediate review—in 
part because it involves something discrete. Cf. Cohen v. 
Benefcial Industrial Loan Corp., 337 U. S. 541, 546 (1949) 
(allowing an interlocutory appeal from a district court's “col-
lateral” ruling, “independent of the cause itself”). The Gov-
ernment's redefnition of what counts as collateral would 
effectively foreclose that possibility. 
Third and fnally, Cochran's and Axon's claims are “outside 
the [Commissions'] expertise.” Thunder Basin, 510 U. S., at 
212. On that issue, Free Enterprise Fund could hardly be 
clearer. Claims that tenure protections violate Article II, 
the Court there determined, raise “standard questions of ad-
ministrative” and constitutional law, detached from “consid-
erations of agency policy.” 561 U. S., at 491 (internal quota-
tion marks and alterations omitted); see supra, at 188. That 
statement covers Axon's and Cochran's claims that ALJs are 
too far insulated from the President's supervision. And 
Axon's constitutional challenge to the combination of pros-
ecutorial and adjudicative functions is of a piece—similarly 
distant from the FTC's “competence and expertise.” 561 
U. S., at 491. The Commission knows a good deal about 
competition policy, but nothing special about the separation 
of powers. For that reason, we observed two Terms ago, 
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Opinion of the Court 
“agency adjudications are generally ill suited to address 
structural constitutional challenges”—like those maintained 
here. Carr v. Saul, 593 U. S. –––, ––– (2021). 
On this last factor, even the Government mostly gives up 
the ghost. Its argument goes: “Even when an agency lacks 
expertise in interpreting the Constitution, it can still `apply 
its expertise' by deciding other issues”—whether “statutory, 
regulatory, or factual”—“that `may obviate the need to ad-
dress the constitutional challenge.' ” Brief for Federal Par-
ties 54 (quoting Elgin, 567 U. S., at 22–23). The frst clause 
of that sentence concedes the expertise point—and the rest 
cannot reclaim it. True enough, we partly relied in Elgin 
on the MSPB's expertise on a raft of ordinary employment 
issues surrounding the employee's contention that the Equal 
Protection Clause barred his discharge. See 567 U. S., at 
22–23; supra, at 187. But the Government here does not 
pretend that Axon's and Cochran's constitutional claims are 
similarly intertwined with or embedded in matters on which 
the Commissions are expert. (It is precisely because those 
claims are not so entangled that the Government must try 
to redefne what it means for claims to be “collateral” to an 
agency action. See supra, at 193–194.) And unlike in 
Elgin, ruling for Axon and Cochran on expertise-laden 
grounds would not “obviate the need” to address their consti-
tutional claims—which, again, allege injury not from this or 
that ruling but from subjection to all agency authority. 
Those claims of here-and-now harm would remain no matter 
how much expertise could be “brought to bear” on the other 
issues these cases involve. Thunder Basin, 510 U. S., at 215. 
All three Thunder Basin factors thus point in the same 
direction—toward allowing district court review of Axon's 
and Cochran's claims that the structure, or even existence, of 
an agency violates the Constitution. For the reasons given 
above, those claims cannot receive meaningful judicial re-
view through the FTC Act or Exchange Act. They are col-
lateral to any decisions the Commissions could make in in-
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 AXON ENTERPRISE, INC. v. FTC 
Thomas, J., concurring 
dividual enforcement proceedings. And they fall outside 
the Commissions' sphere of expertise. Our conclusion fol-
lows: The claims are not “of the type” the statutory review 
schemes reach. Id., at 212. A district court can therefore 
review them. 
* * * 
We accordingly reverse the judgment of the Court of Ap-
peals for the Ninth Circuit, affrm the judgment of the Court 
of Appeals for the Fifth Circuit, and remand the two cases 
for further proceedings consistent with this opinion. 
It is so ordered. 
Justice Thomas, concurring. 
I join the Court's opinion in full because it correctly ap-
plies precedent to determine that Axon Enterprise's and 
Michelle Cochran's structural constitutional claims need not 
be channeled through the administrative review schemes at 
issue. I write separately, however, because I have grave 
doubts about the constitutional propriety of Congress vest-
ing administrative agencies with primary authority to ad-
judicate core private rights with only deferential judicial 
review on the back end. 
I 
A 
The Court correctly notes that precedent allows Congress 
to replace Article III district courts with “an alternative 
scheme of review,” as it did in the provisions of the Securities 
Exchange Act and the Federal Trade Commission Act at 
issue here. Ante, at 185; see 15 U. S. C. §§ 45(c) and 78y(a). 
Under such schemes, administrative agencies may impose or-
ders and penalties on private parties; adjudicate them before 
agency administrative law judges (ALJs); and only then be 
subjected to deferential review by an Article III court. As 
the Court puts it, “[t]he agency effectively flls in for the 
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Thomas, J., concurring 
district court, with the court of appeals providing judicial 
review.” Ante, at 185. That Article III review is sharply 
limited. For example, under the administrative review 
schemes at issue here, the reviewing court must treat agency 
fndings of fact as “conclusive” so long as they are “supported 
by substantial evidence,” § 78y(a)(4); see § 45(c) (“if sup-
ported by evidence”), a highly deferential standard of re-
view.
1 The reviewing court also cannot take its own evi-
dence—it can only remand the case to the agency for further 
proceedings. See §§ 45(c) and 78y(a)(5). 
This mixed system—primary adjudication by an executive 
agency subject to only limited Article III review—is unlike 
the system that prevailed for the frst century of our Nation's 
existence. During that period, judicial review was “all-or-
nothing”; “either a court had authority to review administra-
tive action or not, and if it did, it decided the whole case.” 
T. Merrill, Article III, Agency Adjudication, and the Origins 
of the Appellate Review Model of Administrative Law, 111 
Colum. L. Rev. 939, 944, 952 (2011) (Merrill). This all-or-
nothing model rested on a conceptual distinction between 
core private rights, on the one hand, and mere public rights 
and governmental privileges, on the other. “Disposition of 
private rights to life, liberty, and property” was understood 
to “fal[l] within the core of the judicial power, whereas dispo-
sition of public rights [was] not.” Wellness Int'l Network, 
Ltd. v. Sharif, 575 U. S. 665, 711 (2015) (Thomas, J., dis-
senting). Thus, “[t]he measure of judicial involvement was 
private right. In particular, the extent to which the judi-
1 Deferential review of the SEC's and FTC's decisions is particularly 
concerning given their tendency to overwhelmingly agree with their re-
spective agency's decisions. See 986 F. 3d 1173, 1187 (CA9 2021) (“FTC 
has not lost a single case [in administrative proceedings] in the past quarter-
century. Even the 1972 Miami Dolphins would envy that type of record”); 
Brief for Respondent in No. 21–1239, p. 9 (noting that, between October 
2010 and March 2015, SEC won more than 90% of cases brought before its 
ALJs as compared to 69% of cases brought before federal courts). 
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Thomas, J., concurring 
ciary reviewed actions and legal determinations of the execu-
tive depended on private right.” J. Harrison, Jurisdiction, 
Congressional Power, and Constitutional Remedies, 86 Geo. 
L. J. 2513, 2516 (1998) (footnote omitted).
2 Even today, the 
distinction “between `public rights' and `private rights' ” con-
tinues to inform this Court's understanding of “Article III 
judicial power.” Oil States Energy Services, LLC v. 
Greene's Energy Group, LLC , 584 U. S. –––, ––– (2018). 
As I have explained, when private rights are at stake, full 
Article III adjudication is likely required. Private rights 
encompass “the three `absolute' rights,” life, liberty, and 
property, “so called because they `appertain and belong to 
particular men merely as individuals,' not `to them as mem-
bers of society or standing in various relations to each 
other'—that is, not dependent upon the will of the govern-
ment.” Wellness Int'l Network, 575 U. S., at 713–714 (dis-
senting opinion) (quoting 1 W. Blackstone, Commentaries on 
the Laws of England 119 (1765); alterations omitted). Such 
rights could be adjudicated and divested only by Article III 
courts. See 575 U. S., at 713 (“[A]n exercise of the judicial 
power is required `when the government wants to act au-
thoritatively upon core private rights that had vested in a 
particular individual' ” (quoting C. Nelson, Adjudication in 
the Political Branches, 107 Colum. L. Rev. 559, 569 (2007) 
(Nelson); alteration omitted)); see also J. Mascott, Constitu-
tionally Conforming Agency Adjudication, 2 Loyola U. Chi. 
J. Reg. Compliance 22, 45 (2017) (Mascott) (“Cases involving 
. . . deprivations or transfers of life, liberty, or property con-
2 This also helps to explain why, in Marbury v. Madison, 1 Cranch 137 
(1803), Chief Justice Marshall found it necessary to frst determine 
whether Marbury was “entitled to the possession of those evidences of 
offce, which, being completed, became his property .” Id., at 155 (empha-
sis added). Only once it was established that a vested property right was 
at stake did the Court determine the remaining issues. Marbury thus 
“stand[s] for the importance of private right.” Harrison, 86 Geo. L. J., at 
2516, n. 10. 
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Thomas, J., concurring 
stitute a `core' of cases that . . . must be resolved by Article III 
courts—not executive adjudicators `dressed up as courts' ”). 
A different regime prevailed for public rights and privi-
leges. Unlike “the private unalienable rights of each indi-
vidual,” Lansing v. Smith, 4 Wend. 9, 21 (N. Y . 1829), public 
rights “belon[g] to the people at large,” and governmental 
privileges are “created purely for reasons of public policy 
and . . . ha[ve] no counterpart in the Lockean state of na-
ture.” Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 
574 U. S. 318, 344, n. 2 (2015) (Thomas, J., dissenting) (inter-
nal quotation marks omitted). It was understood at the 
founding that such governmental privileges (some of which 
we today call Government benefts and entitlements) “could 
be taken away without judicial process.” Sessions v. Di-
maya, 584 U. S. –––, ––– (2018) (Thomas, J., dissenting); see 
also Mascott 25. Thus, “the legislative and executive 
branches may dispose of public rights [and privileges] at 
will—including through non-Article III adjudications.” 
Wellness Int'l Network, 575 U. S., at 713 (Thomas, J., 
dissenting). 
B 
The requirement of plenary Article III adjudication of pri-
vate rights began to change in the early 20th century. As 
notions of administrative effciency came into vogue, courts 
were viewed less as guardians of core private rights and 
more as impediments to expert administrative adjudication. 
See 20 F. 4th 194, 219 (CA5 2021) (Oldham, J., concurring). 
After his election in 1904, President Theodore Roosevelt, 
who “shared the progressive faith in administrative exper-
tise,” sought to “rei[n] in judicial review” of administrative 
action. Merrill 955. This progressive sentiment led to the 
Hepburn Act, 34 Stat. 584, which was designed to curb judi-
cial review of Interstate Commerce Commission (ICC) rate 
orders. Prior to the Hepburn Act, the ICC was required to 
fle a bill of equity in court to obtain judicial enforcement of 
its rate orders. Merrill 955. But, the Hepburn Act pro-
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vided that the ICC's “orders were to be self-executing thirty 
days after they became fnal, unless `suspended or set aside 
by a court of competent jurisdiction' ”—almost inverting the 
traditional system. Ibid. (quoting 34 Stat. 589). While the 
Act was silent on the standard of review, this Court under-
stood “the implied threat that if [it] did not back off from its 
aggressive review practices, more drastic action would be in 
the offng.” Merrill 959. 
Accordingly, the Court began to develop what is now 
known as the “appellate review model.” See id., at 963–965. 
While maintaining that the courts must decide “all relevant 
questions of constitutional power or right” and other ques-
tions of law, ICC v. Illinois Central R. Co., 215 U. S. 452, 
470 (1910), the Court held that an ICC order “supported by 
evidence” must be “accepted as fnal,” ICC v. Union Pacifc 
R. Co., 222 U. S. 541, 547 (1912). Following the Court's lead, 
Congress codifed the appellate review model in the two stat-
utes at issue here. The Federal Trade Commission Act pro-
vided that “the fndings of the commission as to the facts, if 
supported by testimony, shall in like manner be conclusive” 
in federal court. 38 Stat. 720 (codifed, as amended, at 15 
U. S. C. § 45(c)). The Securities Exchange Act of 1934 like-
wise provided that the SEC's fndings “shall be conclusive” 
“if supported by substantial evidence.” 48 Stat. 902 (codi-
fed, as amended, at 15 U. S. C. § 78y). 
In the 1930s, this Court upheld the constitutionality of the 
appellate review model against arguments that it violated 
the separation of powers and Seventh Amendment. First, 
in Crowell v. Benson, 285 U. S. 22 (1932), the Court examined 
the Longshoremen's and Harbor Workers' Compensation 
Act, which authorized administrative agencies to adjudicate 
workers' compensation claims against private parties. The 
Court acknowledged that the case was “one of private right,” 
id., at 51, but held that Congress had the authority to place 
primary factfnding authority in an administrative agency, 
id., at 54. It reasoned that such a scheme did not violate

201 
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Thomas, J., concurring 
Article III because “Congress has considerable power to 
structure [judicial] proceedings and to regulate the mecha-
nisms that courts use to ascertain facts.” Nelson 600. 
Next, in NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 
1 (1937), the Court examined the National Labor Relations 
Act's judicial review provisions, which required an Article 
III court to accept the National Labor Relations Board's fac-
tual fndings so long as they were “supported by evidence” 
in the administrative record. 49 Stat. 454. The Court held 
that this arrangement did not violate the Seventh Amend-
ment, which provides that “[i]n Suits at common law, where 
the value in controversy shall exceed twenty dollars, the 
right of trial by jury shall be preserved.” The Court rea-
soned that, “because claims seeking statutory remedies for 
violations of the Act were `statutory proceedings' that were 
`unknown to the common law,' they were not `suits at com-
mon law' within the meaning of the Seventh Amendment.” 
Nelson 602 (quoting Jones & Laughlin, 301 U. S., at 48; alter-
ations omitted). These cases solidifed administrative agen-
cies' authority “to act as factfnding adjuncts to the federal 
judiciary on a broad array of statutory claims, including 
claims for monetary relief.” Nelson 602.
3 
II 
As I have previously explained, “[b]ecause federal admin-
istrative agencies are part of the Executive Branch, it is not 
clear that they have power to adjudicate claims involving 
3 The Court has further blurred the line between adjudications that re-
quire Article III courts and those that do not by equating mere Govern-
ment benefts and entitlements with core private rights. See, e. g., Gold-
berg v. Kelly, 397 U. S. 254, 261–263 (1970) (holding that due process rights 
attach to the deprivation of Government benefts); see also id., at 262, n. 8 
(“It may be realistic today to regard welfare entitlements as more like 
`property' than a `gratuity.' . . . It has been aptly noted that `society today 
is built around entitlement' ” (quoting C. Reich, Individual Rights and So-
cial Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245, 1255 (1965); 
alteration omitted)). 
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Thomas, J., concurring 
core private rights.” B&B Hardware, Inc. v. Hargis Indus-
tries, Inc., 575 U. S. 138, 171 (2015) (dissenting opinion). 
The “appellate review model” of agency adjudication thus 
raises serious constitutional concerns. It may violate the 
separation of powers by placing adjudicatory authority over 
core private rights—a judicial rather than executive power— 
within the authority of Article II agencies. See ibid. (“To 
the extent that administrative agencies could, consistent 
with the Constitution, function as courts, they might only be 
able to do so with respect to claims involving public or quasi-
private rights”). It may violate Article III by compelling 
the Judiciary to defer to administrative agencies regarding 
matters within the core of the Judicial Vesting Clause. See 
P. Hamburger, Is Administrative Law Unlawful? 297 (2014) 
(Hamburger) (explaining that, traditionally, “even at the be-
hest of Congress, the judges could not defer to the executive 
record or the facts supposedly established by it, lest they 
abandon their offce of independent judgment and the offce 
of juries to decide the facts”). And, it may violate due proc-
ess by empowering entities that are not courts of competent 
jurisdiction to deprive citizens of core private rights. See 
B&B Hardware , 575 U. S., at 164 (Thomas, J., dissenting) 
(“[H]owever broadly `court of competent jurisdiction' was 
defned, it would require quite a leap to say that the concept 
encompasses administrative agencies, which were recognized 
as categorically different from courts” (alteration omitted)); 
see also Hamburger 256 (“The guarantee of due process . . . 
bars the government from holding subjects to account out-
side courts and their processes”). Finally, the appellate re-
view model may run afoul of the Seventh Amendment by 
allowing an administrative agency to adjudicate what may 
be core private rights without a jury. See Tull v. United 
States, 481 U. S. 412, 417 (1987) (explaining that the Seventh 
Amendment ensures the right to a jury trial for all adjudica-
tions “analogous to `Suits at common law' ”). 
It is no answer that an Article III court may eventually 
review the agency order and its factual fndings under a def-

203 
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Thomas, J., concurring 
erential standard of review. In fact, there seems to be no 
basis for treating factfnding differently from deciding ques-
tions of law. Both are at the core of judicial power, as Arti-
cle III itself acknowledges. See § 2, cl. 2 (providing that this 
Court's appellate jurisdiction is “both as to Law and Fact”); 
see also Stern v. Marshall, 564 U. S. 462, 484 (2011). For 
much of the Nation's history, it was understood that Arti-
cle III precluded “the political branches” from exercising 
“power over the determination of individualized adjudicative 
facts when core private rights were at stake.” Nelson 593 
(emphasis deleted); see also Hamburger 297. It is obvious 
that Article III “would not be satisfed if Congress provided 
for judicial review but ordered the courts to affrm the 
agency no matter what.” G. Lawson, The Rise and Rise of 
the Administrative State, 107 Harv. L. Rev. 1231, 1247 (1994) 
(Lawson). And, “[t]here is no reason to think that it is any 
different if Congress instead simply orders courts to put a 
thumb (or perhaps two forearms) on the agency's side of the 
scale.” Id., at 1247–1248. Such a regime “allows a mere 
party to supplant a jury as the court's fact fnder,” Ham-
burger 319, and it “effectively vest[s] the judicial power 
either in the agency or in Congress,” Lawson 1247. It thus 
appears likely that, “when agency adjudicators stray outside 
the proper limits of executive adjudication such as by depriv-
ing individuals of vested property rights, they must not 
serve even as fact-fnders subject to judicial deference.” 
Mascott 25 (footnote omitted). 
In sum, whether any form of administrative adjudication 
is constitutionally permissible likely turns on the nature of 
the right in question. If private rights are at stake, the 
Constitution likely requires plenary Article III adjudication. 
Conversely, if privileges or public rights are at stake, Con-
gress likely can foreclose judicial review at will. 
III 
The rights at issue in these cases appear to be core private 
rights that must be adjudicated by Article III courts. For 
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204 AXON ENTERPRISE, INC. v. FTC 
Gorsuch, J., concurring in judgment 
one, Axon and Cochran face the threat of signifcant mone-
tary fnes. Indeed, in the frst round of proceedings, the 
SEC imposed a $22,500 civil penalty on Cochran. And, the 
FTC seeks to require Axon to transfer intellectual property 
to another entity. These types of penalties and orders im-
plicate the core private right to property. See Lawson 1247 
(“imposition of a civil penalty or fne” implicates core Article 
III power); see also Nelson 626–627. Accordingly, they 
likely must be adjudicated by Article III courts and juries. 
See Tull, 481 U. S., at 422 (“A civil penalty was a type of 
remedy at common law that could only be enforced in courts 
of law”); accord, id., at 427–428 (Scalia, J., concurring in part 
and dissenting in part). Naturally, merely labeling the dep-
rivation of a core private right a “civil penalty” cannot allow 
Congress and agencies to circumvent constitutional require-
ments. Cf. Granfnanciera, S. A. v. Nordberg, 492 U. S. 33, 
61 (1989) (“Congress cannot eliminate a party's Seventh 
Amendment right to a jury trial merely by relabeling the 
cause of action to which it attaches and placing exclusive 
jurisdiction in an administrative agency or a specialized 
court of equity”). By permitting administrative agencies to 
adjudicate what may be core private rights, the administra-
tive review schemes here raise serious constitutional issues. 
* * * 
Because the Court today correctly holds that Axon's and 
Cochran's claims are not precluded by the review-channeling 
provisions at issue here, I join its opinion in full. In an ap-
propriate case, we should consider whether such schemes 
and the appellate review model they embody are constitu-
tional methods for the adjudication of private rights. 
Justice Gorsuch, concurring in judgment. 
I agree with the Court that Michelle Cochran and Axon 
Enterprise are entitled to their day in court. But to my 
mind the reason why has nothing to do with the “Thunder 
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205 
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Gorsuch, J., concurring in judgment 
Basin factors.” Ante, at 186. Instead, it follows directly 
from 28 U. S. C. § 1331. 
I 
The Constitution vests in Congress the power to create 
and organize lower federal courts. See Art. I, § 8, cl. 9; 
Art. III, § 1; Sheldon v. Sill, 8 How. 441, 449 (1850). Exer-
cising that power, for the last 150 years Congress has afforded 
lower federal courts jurisdiction to hear civil disputes arising 
under the Constitution or laws of the United States. Act of 
Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470; see also Federal Ques-
tion Jurisdictional Amendments Act of 1980, 94 Stat. 2369 
(eliminating amount-in-controversy requirement). Today, 
§ 1331 provides that “district courts shall have original juris-
diction of all civil actions arising under the Constitution, 
laws, or treaties of the United States.” Not may have juris-
diction, but shall. Not some civil actions arising under fed-
eral law, but all. The statute is as clear as statutes get, and 
everyone agrees it encompasses the claims Ms. Cochran and 
Axon seek to pursue. See ante, at 185. End of case, right? 
Not so fast. As the Court sees it, Ms. Cochran, Axon, and 
others like them must satisfy not only § 1331. They must 
also satisfy a judge-made, multi-factor balancing test. One 
assembled from remarks scattered here and there across the 
pages of Thunder Basin Coal Co. v. Reich, 510 U. S. 200 
(1994). And one, we are told, designed to ferret out whether 
the legislators who adopted the Federal Trade Commission 
Act in 1914 and the Securities Exchange Act in 1934 har-
bored an “implici[t]” wish to “ous[t]” district courts of juris-
diction in favor of agency proceedings. Ante, at 185–186. 
So, yes, the law on the books may promise you the right to 
be heard in a court of law. But sometimes that doesn't count 
for much. Sometimes judges can shunt you to an agency 
instead—so long as a test we have fabricated suggests to us 
that is what Congress really wanted. 
There are many problems with the Thunder Basin proj-
ect, but start with its sheer incoherence. At the outset, 
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Thunder Basin requires litigants and courts to ask whether 
a “ `comprehensive review process' ” exists. Ante, at 186. 
What does that mean? It seems a review process will “typi-
cally” qualify as “comprehensive” when “review in a court 
of appeals follow[s] the agency's own review.” Ibid. But 
“typically” does not mean “necessarily.” Ibid. Just be-
cause an agency can hear a case does not mean a district 
court cannot. To decide whether a particular case belongs 
in an agency rather than a court, you must consult three 
further “considerations . . . commonly known now as the 
Thunder Basin factors.” Ibid. 
That's where the magic happens. The Thunder Basin fac-
tors require assessing whether: (1) “precluding district court 
jurisdiction” would “foreclose all meaningful judicial re-
view”; (2) the plaintiff's claims are “wholly collateral” to the 
statutory review scheme; and (3) the claims are “outside the 
agency's expertise.” Ante, at 186 (internal quotation marks 
omitted); see generally 510 U. S., at 207–215. Harnessing 
the energy of these various factors, we are assured, will 
allow anyone to detect a latent congressional intent to oust 
district courts of their jurisdiction in any given case. See 
ante, at 186–188. 
Just see how easy it is. To apply the frst factor, all you 
have to do is ask a few more questions. They include 
whether the plaintiff could “eventually” obtain review in 
some federal court; whether that court's review “would come 
too late to be meaningful”; and (maybe) how analogous the 
plaintiff's plea for immediate review is to a governmental 
offcial's plea for qualifed immunity. Ante, at 190–192. If 
this is starting to seem more confounding than clarifying, do 
not worry. The frst factor is the “least straightforward” 
anyway. Ante, at 190. When it comes to the second factor, 
you only need to evaluate the “collateralism” of the plaintiff 's 
claim. Ante, at 192. Apparently, that “requires consider-
ing the nature of the claim, not the status (pending or not) 
of an agency proceeding.” Ante, at 194. The third factor 
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Gorsuch, J., concurring in judgment 
is just one easy question too, focused on whether the plain-
tiff 's claim is “intertwined with or embedded in matters on 
which the [agency is] expert.” Ante, at 195. If that does 
not help, try asking if the claim is “entangled” with the 
agency's expertise, ibid., or if the agency can bring to bear 
“distinctive knowledge,” ante, at 186. 
Even after you make it through these twists and turns, a 
fnal surprise sometimes awaits. The Court holds that all 
three Thunder Basin factors favor Ms. Cochran and Axon, 
so their cases may proceed in district court. Ante, at 195. 
But what happens when the factors point in different direc-
tions, some in favor and others against immediate judicial 
review? No one knows. You get to guess.
1 
II 
Putting aside these problems with the Thunder Basin 
project serves only to expose others. We are told that con-
sulting so many disparate factors is essential if we are to 
divine and give effect to “implici[t]” congressional “inten-
[tions]” to divest district courts of jurisdiction in favor of cer-
tain agency proceedings. Ante, at 185–186 (internal quota-
tion marks omitted). But what gives courts authority to en-
gage in this business of jurisdiction-stripping-by-implication? 
The answer, of course, is nothing. Under our Constitu-
tion, “Congress, and not the Judiciary, defnes the scope of 
federal jurisdiction.” New Orleans Public Service, Inc. v. 
Council of City of New Orleans, 491 U. S. 350, 359 (1989). 
Federal courts “have no more right to decline the exercise 
of jurisdiction which is given, than to usurp that which is 
not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) 
(Marshall, C. J., for the Court). That is why we have called 
1 See Tr. of Oral Arg. in No. 21–86, p. 81 (“Justice Alito: . . . Does 
Axon have to win on all three? Do you have to win on all three? Or can 
either of you win if one or more factors go in one direction and the other 
factor or factors go in the other direction? [Deputy Solicitor General]: 
. . . I'm not trying to be obstreperous, but I think it would depend . . . ”). 
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Gorsuch, J., concurring in judgment 
it the “true rule” that “statutes clearly defning the juris-
diction of the courts . . . must control . . . in the absence 
of subsequent legislation equally express.” Rosencrans v. 
United States, 165 U. S. 257, 262 (1897). And why we have 
said that “jurisdiction conferred by 28 U. S. C. § 1331,” in par-
ticular, “should hold frm against mere implication[s]” from 
other laws. Mims v. Arrow Financial Services, LLC , 565 
U. S. 368, 383 (2012) (internal quotation marks omitted). 
Thunder Basin defes these foundational rules. Maybe 
worse, it exhibits familiarity with none of them. No one dis-
putes that § 1331 represents a valid exercise of Congress's 
authority to regulate the jurisdiction of the district courts. 
No one questions that § 1331 permits cases like those before 
us to proceed. No Member of the Court points to any stat-
ute Congress has adopted that speaks otherwise. Under the 
law, that should be the end of the matter. But under Thun-
der Basin, courts may refuse individuals their right to a judi-
cial forum based on nothing more than suppositions about 
“implici[t]” congressional “inten[tions].” Ante, at 185–186. 
Divesting jurisdiction by mere implication goes from out-of-
bounds to the name of the game. Along the way, this Court 
arrogates to itself a power to control the jurisdiction of lower 
federal courts that the Constitution reserves to Congress. 
All to what end? At bottom, Thunder Basin rests on a 
view that it is sometimes more important to allow agencies 
to work without the bother of having to answer suits against 
them than it is to allow individuals their day in court. But 
when Congress holds that view, it does not ask us to juggle 
a variety of factors and then guess at the implicit intentions 
of legislators past. It simply tells us. See, e. g., 12 U. S. C. 
§ 1818(i)(1) (“[E]xcept as otherwise provided in this section 
or under section 1831o or 1831p–1 of this title no court shall 
have jurisdiction to affect by injunction or otherwise the is-
suance or enforcement of any notice or order under any such 
section”); 42 U. S. C. § 405(h) (“No action against the United 
States, the Commissioner of Social Security, or any offcer or 
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Gorsuch, J., concurring in judgment 
employee thereof shall be brought under section 1331 or 1346 
of title 28 to recover on any claim arising under this 
subchapter”).2 
III 
There is a better way. Our job is to interpret the laws 
Congress has adopted. It is a task that “begins with the 
language of the [relevant] statute[s]” and, when “the statu-
tory language provides a clear answer, it ends there as well.” 
Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438 (1999) 
(internal quotation marks omitted). Because no one doubts 
that § 1331 vests district courts with jurisdiction to hear 
these cases, the only question properly before us is whether 
Congress has actually carved out some exception in some 
other statute. The government points to two candidates. 
But the government's arguments from those laws are so im-
probable that the Court barely mentions them. I pause to 
walk through each only to illustrate how these cases should 
have been resolved. 
2 These are only a few of the conceptual problems with the Thunder 
Basin project. Here's another: If the Thunder Basin factors really did 
delineate the bounds of § 1331 jurisdiction, a district court would have to 
balance them in every case where there is even the possibility of parallel 
agency proceedings. That would hold true regardless of whether the 
agency invokes Thunder Basin and regardless of whether the agency itself 
may prefer to proceed in court. See Wilkins v. United States, 598 U. S. 
–––, ––– (2023) (“courts have a duty to consider [jurisdictional bars] 
sua sponte”). But this Court has never said Thunder Basin commands 
anything like that. At the very least, then, the Court should acknowledge 
Thunder Basin for what it truly is: a judge-made exhaustion requirement, 
not a jurisdictional rule. Even that much candor, however, would not 
rescue the contrivance. As this Court has recognized, we possess no 
more authority to “impos[e] extra-statutory limitations” on the “capacity 
to sue” than we do to impose extra-statutory limitations on the jurisdiction 
of the lower federal courts. Ross v. Blake, 578 U. S. 632, 640, n. 1 (2016); 
see Jones v. Bock, 549 U. S. 199, 203 (2007) (“crafting and imposing” ex-
haustion rules “not required by” statute “exceeds the proper limits on the 
judicial role”). 
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In Ms. Cochran's case, the government directs our atten-
tion to § 78y(a)(1) of the Exchange Act. That provision says 
that “[a] person aggrieved by a fnal order of the Commission 
. . . may obtain review of the order in the United States 
Court of Appeals . . . by fling in such court . . . a written 
petition requesting that the order be modifed or set aside in 
whole or in part.” 15 U. S. C. § 78y(a)(1). Plainly, the stat-
ute promises jurisdiction in a court of appeals for those hop-
ing to contest “a fnal order of the Commission.” But just 
as plainly, Ms. Cochran does not seek to challenge an SEC 
fnal order. Nor could she, because the agency has not en-
tered one in her case. Ms. Cochran does not even seek relief 
in anticipation of a fnal agency order. Instead, she seeks 
to avoid being hauled before an agency that she alleges is 
unconstitutionally structured. See ante, at 182–183. That 
is exactly the kind of “here-and-now injury” this Court has 
held “can be remedied by a court” without regard to the 
eventual outcome of agency proceedings. Seila Law LLC v. 
Consumer Financial Protection Bureau, 591 U. S. –––, ––– 
(2020) (internal quotation marks omitted). 
If all that were not enough, there is more. A neighboring 
statutory provision says that “the rights and remedies” the 
Exchange Act authorizes “shall be in addition to any and 
all other rights and remedies that may exist at law or in 
equity.” § 78bb(a)(2). This Court has explained that a 
“saving clause” of this sort “strongly buttresse[s]” the con-
clusion that a review provision such as § 78y(a)(1) does not 
preclude “traditional avenues of judicial relief.” Abbott 
Laboratories v. Gardner, 387 U. S. 136, 142, 144 (1967). 
And, of course, one traditional avenue of relief is a suit in 
district court under § 1331 seeking to enjoin unconstitutional 
conduct. See Free Enterprise Fund v. Public Company Ac-
counting Oversight Bd., 561 U. S. 477, 491, n. 2 (2010). Far 
from barring Ms. Cochran's path to court, then, the Ex-
change Act expressly preserves it. 
The story repeats itself when it comes to Axon. The gov-
ernment insists that § 5(c) of the FTC Act precludes district 
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Gorsuch, J., concurring in judgment 
courts from entertaining constitutional challenges to the 
agency's structure. But § 5(c) provides only that parties 
subject to “an order of the Commission to cease and desist 
from using any method of competition or act or practice may 
obtain a review of such order in the court of appeals of the 
United States.” 15 U. S. C. § 45(c). And, here again, we 
have nothing like that. The FTC has not ordered Axon to 
cease and desist from anything. That § 5(c) does not fore-
close Axon's case fnds reinforcement next door too. Section 
5(d) holds that, “[u]pon the fling of the record . . . the juris-
diction of the court of appeals of the United States to affrm, 
enforce, modify, or set aside orders of the Commission shall 
be exclusive.” § 45(d). So until an administrative record is 
lodged in the court of appeals—something that hasn't hap-
pened here either—the appellate court's jurisdiction is not 
exclusive and a plaintiff like Axon remains free to proceed 
in district court. 
In both cases, the relevant statutes guide the way. Sec-
tion 1331 grants district courts the power to hear Ms. Coch-
ran's and Axon's claims and no other law takes that power 
away. Resolving jurisdictional disputes by looking to the 
terms of the statutes Congress has adopted may hold none 
of the suspense that comes with a ride on the Thunder Basin 
roller coaster. But that is as it should be. “Where the stat-
utory language is clear, our sole function . . . is to enforce it 
according to its terms.” Rake v. Wade, 508 U. S. 464, 471 
(1993) (internal quotation marks omitted).
3 
3 The parties spar over whether the government forfeited different ar-
guments against district court jurisdiction premised on two provisions of 
the Administrative Procedure Act (APA). E. g., Reply Brief for Respond-
ent in No. 21–1239, p. 21. Forfeited or not, these arguments hardly help 
the government. One of the APA provisions the government cites con-
cerns review of “preliminary, procedural, or intermediate agency action.” 
5 U. S. C. § 704. The government assumes we have “agency action” by 
dint of the “initiation” or “commencement” of agency proceedings against 
Ms. Cochran and Axon. Tr. of Oral Arg. in No. 21–86, p. 51; Tr. of Oral 
Arg. in No. 21–1239, p. 67. But “agency action” is a defned term, one 
that embraces “the whole or a part of an agency rule, order, license,

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Gorsuch, J., concurring in judgment 
IV 
While the Court reaches the right result today, its choice 
of the wrong path matters. Not just because continuing to 
apply the Thunder Basin factors leaves the law badly dis-
torted. It also matters because Thunder Basin's throw-it-
in-a-blender approach to jurisdiction imposes serious and 
needless costs on litigants and lower courts alike. 
Jurisdictional rules, this Court has often said, should be 
“clear and easy to apply.” Hamer v. Neighborhood Housing 
Servs. of Chicago , 583 U. S. 17, ––– (2017); see also Sisson v. 
Ruby, 497 U. S. 358, 364, n. 2 (1990); Foremost Ins. Co. v. 
Richardson, 457 U. S. 668, 676–677 (1982). For parties, 
“[c]omplex jurisdictional tests complicate a case, eating up 
time and money as [they] litigate, not the merits of their 
claims, but which court is the right court to decide those 
claims.” Hertz Corp. v. Friend, 559 U. S. 77, 94 (2010). For 
courts, jurisdictional rules “mark the bounds” of their “ `adju-
dicatory authority.' ” Boechler v. Commissioner, 596 U. S. 
–––, ––– (2022). Judges therefore “beneft from straightfor-
ward rules under which they can readily assure themselves 
of their power to hear a case,” Hertz, 559 U. S., at 94, while 
“adventitious” rules leave them with “almost impossible” 
tasks to perform that squander their limited resources, Ex-
ecutive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249, 266 
(1972). 
There are many words to describe the Thunder Basin fac-
tors, but “clear and easy to apply” are not among them. To 
sanction, relief, or the equivalent or denial thereof, or failure to act.” 
5 U. S. C. § 551(13). Ms. Cochran and Axon are not subject to, and do not 
seek review of, any of those things. The other APA provision says “[t]he 
form of proceeding for judicial review is the special statutory review pro-
ceeding relevant to the subject matter in a court specifed by statute.” 
§ 703. But as we have seen, Ms. Cochran and Axon do not seek judicial 
review of an SEC fnal order or an FTC cease-and-desist order—and both 
the Exchange Act and the FTC Act preserve their right to proceed in 
district court to address the here-and-now injuries they assert. 
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Gorsuch, J., concurring in judgment 
appreciate the trouble Thunder Basin can generate for liti-
gants and lower courts alike, consider some of the facts of 
Ms. Cochran's case that do not fnd their way into the 
Court's opinion. 
A single mother of two and a certifed public accountant, 
Ms. Cochran began looking for part-time work in 2007. 
Eventually, she found a position at a small company called 
The Hall Group. Soon, however, she discovered that the 
owner, David Hall, was not just abrasive but dishonest. At 
one point, he even added Ms. Cochran's name to the frm's 
business license without her permission, all to facilitate his 
idea of rebranding his company as “The Hall Group CPAs.” 
When Ms. Cochran protested, Mr. Hall offered her a choice: 
become a nonequity partner with no increase in pay so that 
he could use the new name or leave the frm. Ms. Cochran 
chose to quit and put the whole ordeal behind her. 
Or so she thought. Years later, in 2016, Ms. Cochran 
learned that the SEC had initiated an enforcement proceed-
ing against Mr. Hall, another of his former employees, and 
herself. The SEC charged Ms. Cochran with violating 
“Rule 2–02(b)(1) of Regulation S–X and Section 13(a) of the 
Securities Exchange Act of 1934 and Rules 13a–1 and 13a– 
13 thereunder,” as well as “aid[ing] and abett[ing] . . . Rule 
2–02(b)(1) violations.” In re Hall, SEC Initial Decision Re-
lease No. 1114, p. 1 (2017). In English, the SEC alleged that 
Ms. Cochran had failed to complete auditing checklists, leav-
ing certain sections of certain forms “blank.” Id., at 12–13. 
The agency brought these charges even though there was 
“no evidence” that the incomplete paperwork had resulted in 
any “monetary harm to clients or investors.” Id., at 28. 
The SEC elected to proceed against Ms. Cochran before its 
own internal tribunal rather than (as it could have) a court 
of law. The agency assigned the case to one of its hearing 
offcers (an “administrative law judge” or “ALJ”). Report-
edly, that ALJ made a practice of warning defendants during 
settlement discussions that he had “never ruled against the

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 AXON ENTERPRISE, INC. v. FTC 
Gorsuch, J., concurring in judgment 
agency's enforcement division.” J. Eaglesham, SEC Judges' 
Fairness Is in Spotlight, Wall St. J., Nov. 23, 2015, p. C6. It 
seems, though, Ms. Cochran didn't take the hint. She re-
fused to settle and sought to represent herself in the hearing 
that followed. It did not go well. Just as her hearing was 
about to start, her former boss settled his own case and then 
turned about to testify against Ms. Cochran. In the end, the 
ALJ fned Ms. Cochran $22,500 and banned her from practic-
ing before the SEC as an accountant for at least fve years. 
Ms. Cochran responded by asking the full Commission to 
review the ALJ's decision. Around the same time, this 
Court held in an unrelated case that the ALJ who presided 
over Ms. Cochran's case had been unconstitutionally ap-
pointed. See Lucia v. SEC, 585 U. S. –––, ––– (2018). 
Ms. Cochran might have thought that would bring her own 
case to a close. But the SEC chose instead to take a mulli-
gan. In 2018, the agency vacated the initial decision against 
Ms. Cochran and assigned a different, properly appointed 
ALJ to retry the case. So two years after her administra-
tive proceedings began, they began again. 
For Ms. Cochran, that was enough. She sued the SEC 
in federal district court. She sought to enjoin the agency's 
proceedings on the ground that all of its ALJs are unconsti-
tutionally insulated from presidential supervision, pointing 
to this Court's decisions in Lucia and Free Enterprise 
Fund. Lucia held that SEC ALJs are inferior offcers 
under the Constitution's Appointments Clause. 585 U. S., 
at –––. And Free Enterprise Fund held that the President 
must retain adequate authority to supervise and even re-
move such offcers. 561 U. S., at 492. 
In 2019, the district court dismissed Ms. Cochran's suit 
without reaching its merits. 2019 WL 1359252 (ND Tex., 
Mar. 25, 2019). The court did so because it thought Thunder 
Basin required that result. Id., at *1. A year and a half 
later, a panel of the Fifth Circuit ran through the Thunder 
Basin factors and affrmed. 969 F. 3d 507 (2020). A year 
Page Proof Pending Publication

Page Proof Pending Publication
215 
Cite as: 598 U. S. 175 (2023) 
Gorsuch, J., concurring in judgment 
and a half after that, the en banc Fifth Circuit took another 
look and largely reversed. 20 F. 4th 194 (2021). Now, more 
than four years after Ms. Cochran fled her complaint, this 
Court balances the Thunder Basin factors anew and holds 
that her case belonged in district court all along. Ante, at 
195. For its part, Axon has endured a similarly tortuous 
path. Over the course of three years, the district court dis-
missed its case, 452 F. Supp. 3d 882 (Ariz. 2020), and the 
court of appeals affrmed, 986 F. 3d 1173 (CA9 2021), only to 
have this Court reverse that judgment today. 
This is what a win looks like under Thunder Basin. 
When you replace clear jurisdictional rules with a jumble of 
factors, the room for disagreement grows. The incentive to 
litigate increases. Years and fortunes are lost just fguring 
out where a case belongs. Ms. Cochran and Axon have al-
ready endured multi-year odysseys through the entire fed-
eral judicial system—and no judge yet has breathed a word 
about the merits of their claims. Nor can I fault the district 
court in Ms. Cochran's case, or all of the lower courts in 
Axon's case, for thinking the Thunder Basin factors required 
dismissal. When we give our lower-court colleagues such 
confused instructions, we guarantee different courts will 
regularly reach different outcomes on the same facts. 
Maybe even worse is what Thunder Basin means for oth-
ers. Not many possess the perseverance of Ms. Cochran and 
Axon. The cost, time, and uncertainty associated with liti-
gating a raft of opaque jurisdictional factors will deter many 
people from even trying to reach the court of law to which 
they are entitled. Nor is the loss of a day in court in favor 
of one before an agency a small thing. Agencies like the 
SEC and FTC combine the functions of investigator, prose-
cutor, and judge under one roof. They employ relaxed rules 
of procedure and evidence—rules they make for themselves. 
The numbers reveal just how tilted this game is. From 2010 
to 2015, the SEC won 90% of its contested in-house proceed-
ings compared to 69% of the cases it brought in federal court.

216 
 AXON ENTERPRISE, INC. v. FTC 
Gorsuch, J., concurring in judgment 
See G. Mark, Response: SEC Enforcement Discretion, 94 
Texas L. Rev. See Also 261, 262 (2016). Meanwhile, some 
say the FTC has not lost an in-house proceeding in 25 years. 
See Brief for Petitioner in No. 21–86, p. 47. But see Brief 
for American Antitrust Institute as Amicus Curiae in No. 
21–86, p. 18 (suggesting the FTC has won more like 90% of 
the time). 
That review is available in a court of appeals after an 
agency completes its work hardly makes up for a day in court 
before an agency says it's done. When a case eventually 
makes its way to an appellate court, judges sometimes defer 
to the agency's conclusions (especially when it comes to dis-
puted questions of fact). And how many people can afford 
to carry a case that far anyway? Ms. Cochran's administra-
tive proceedings have already dragged on for seven years. 
Thanks in part to these realities, the bulk of agency cases 
settle. See Tilton v. SEC, 824 F. 3d 276, 298, n. 5 (CA2 
2016) (Droney, J., dissenting) (“vast majority” of SEC cases 
settle); Tr. of Oral Arg. in No. 21–1239, p. 6 (“more than 90 
percent” of such cases settle). Aware, too, that few can out-
last or outspend the federal government, agencies sometimes 
use this as leverage to extract settlement terms they could 
not lawfully obtain any other way.
4 Like any needlessly un-
clear jurisdictional test, Thunder Basin carries with it real 
costs—for individuals seeking to vindicate their rights, for 
lower courts who deserve better guidance, and for our legal 
system's promise of a “just, speedy, and inexpensive determi-
nation of every” case, Fed. Rule Civ. Proc. 1. 
4 See P. Hamburger, Purchasing Submission: Conditions, Power, and 
Freedom 223 (2021) (describing this as “regulatory extortion”); D. Gins-
burg & J. Wright, Antitrust Settlement: The Culture of Consent, in 1 
W. Kovacic: An Antitrust Tribute 177 (N. Charbit, E. Ramundo, A. Cheh-
tova, & A. Slater eds. 2013) (“Consent decrees create potential for an en-
forcement agency to extract from parties under investigation commit-
ments well beyond what the agency could obtain in litigation”). 
Page Proof Pending Publication

217 
Cite as: 598 U. S. 175 (2023) 
Gorsuch, J., concurring in judgment 
* 
When Congress withholds jurisdiction, we must respect its 
choice. But when Congress grants jurisdiction to the Na-
tion's courts, we must respect that choice too. We have no 
authority to froth plain statutory text with factors of our 
own design, all with an eye to denying some people the day 
in court the law promises them. Respectfully, this Court 
should be done with the Thunder Basin project. I hope it 
will be soon. 
Page Proof Pending Publication

Page Proof Pending Publication
Reporter’s Note 
The attached opinion has been revised to refect the usual publication 
and citation style of the United States Reports. The revised pagination 
makes available the offcial United States Reports citation in advance of 
publication. The syllabus has been prepared by the Reporter of Decisions 
for the convenience of the reader and constitutes no part of the opinion of 
the Court. A list of counsel who argued or fled briefs in this case, and 
who were members of the bar of this Court at the time this case was 
argued, has been inserted following the syllabus. Other revisions may 
include adjustments to formatting, captions, citation form, and any errant 
punctuation. The following additional edits were made: 
None

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 598 U. S. Part 1 Pages 175–217 OFFICIAL REPORTS OF THE SUPREME COURT April 14, 2023 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to not…

• #2

  “implicitly divest[s] district courts of jurisdiction” over “challenges to SEC proceedings,” including Cochran's constitutional ones. Likewise, the district court in Axon's case found that the FTC Act's comparable review scheme displaces § 1331 jurisdiction for claims concerning the *Together with No. 21–1239, Sec…

• #3

  provisions? Id., at 212. And last, is the claim “outside the agency's expertise”? Ibid. The Court has twice held specifc claims to ft within a statutory re- view scheme, based on the Thunder Basin factors. In Thunder Basin itself, a coal company subject to the Mine Act fled suit in district court instead of asser…

• #4

  Board—an agency regulating the accounting industry under the SEC's oversight—landed outside the Exchange Act's review scheme. Because not all Board action culminates in Commission action—which alone the statute makes reviewable in a court of appeals—the Court determined that the Exchange Act provided no “meaningfu…

• #5

  to undergo the complained-of agency proceedings if they cannot assert those rights until the proceedings are over. The collateralism factor also favors Axon and Cochran. The chal- lenges to the Commissions' authority have nothing to do with either the enforcement-related matters the Commissions regularly adjudicat…

• #6

  torney General Boynton, Vivek Suri, Mark B. Stern, Joshua M. Salzman, Daniel Aguilar , Anisha S. Dasgupta, Joel Marcus, Imad Dean Abyad, Dan M. Berkovitz, Michael A. Conley, Dominick V. Freda, and Daniel Staroselsky. Gregory G. Garre argued the cause for respondent in No. 21–1239. With him on the briefs were Char…

• #7

  ration-of-powers principles. And one respondent attacks as well the combination of prosecutorial and adjudicatory func- tions in a single agency. The challenges are fundamental, even existential. They maintain in essence that the agen- cies, as currently structured, are unconstitutional in much of their work. Ou…

• #8

  ment action has authority, much like a regular trial judge, to resolve motions, hold a hearing, and then issue a decision. See 16 CFR §§ 3.21–3.56 (2021); 17 CFR §§ 201.221–201.360 (2021). A losing party may appeal the ALJ's ruling to the Com- mission; alternatively, the Commission may undertake re- view on its …

• #9

  ant. In an earlier round of that proceeding, an ALJ found that Cochran had failed to comply with auditing standards, in violation of the Exchange Act. But soon after that decision issued, this Court held that the SEC's ALJs had been im- properly appointed. See Lucia v. SEC, 585 U. S. –––, ––– (2018). In complianc…

• #10

  larly to Cochran, Axon asked the court to enjoin the FTC “from subjecting” it to the Commission's “unfair and uncon- stitutional internal forum.” Id., at 7; see id., at 28. 1 1 In this Court, Axon contends that it separately objected to “the uncodi- fed, black-box `clearance' process” used to determine whether th…

• #11

  Co. v. Reich, 510 U. S. 200, 212 (1994)). But the court de- cided that Axon's constitutional challenges fell within the FTC Act's scheme, mainly because the scheme guaranteed them “meaningful judicial review.” 986 F. 3d, at 1181, 1187. The en banc Fifth Circuit disagreed as to the equivalent SEC question. See 20 …

• #12

  Free Enterprise Fund v. Public Company Accounting Over- sight Bd., 561 U. S. 477, 489 (2010) (noting that statutory schemes for agency review “[g]enerally” are “exclusive”). The agency effectively flls in for the district court, with the court of appeals providing judicial review. But a statutory review scheme of…

• #13

  safety commission and then (if needed) a court of appeals. The crux of the dispute concerned the company's refusal to provide employee-designated union offcials with access to the workplace, as the Mine Act apparently required. The Page Proof Pending Publication 187 Cite as: 598 U. S. 175 (2023) Opinion of the …

• #14

  AXON ENTERPRISE, INC. v. FTC Opinion of the Court tory review scheme. The scheme was the Exchange Act's— the same as in Cochran's case. And the main claim in Free Enterprise Fund bears more than a passing resemblance to one Axon and Cochran raise: It, too, alleged that offcials with two layers of tenure protecti…

• #15

  Only the Court's ability to sever the relevant statute's for- cause removal provision enabled the Board to keep running. See ibid. The Article II challenges in Axon's and Cochran's cases would likewise prevent ALJs—through whom the Commissions do much of their work—from exercising any power, unless they lose thei…

• #16

  Still more, we agree with the Government that the reason Free Enterprise Fund gave for departing from Thunder Basin and Elgin on the judicial review issue does not apply to the cases before us. See Brief for Federal Parties 39–40. As just described, Free Enterprise Fund's analysis on that score relied on the sepa…

• #17

  tional agency authority”—a “proceeding by an unaccountable ALJ.” Brief for Axon 36; see Brief for Cochran 37 (contend- ing she suffers harm from “having to appear in proceedings” before an unconstitutionally insulated ALJ). That harm may sound a bit abstract; but this Court has made clear that it is “a here-and-n…

• #18

  parties are asserting. Again, Axon and Cochran protest the “here-and-now” injury of subjection to an unconstitutionally structured decisionmaking process. See supra, at 191. And more, subjection to that process irrespective of its out- come, or of other decisions made within it. A nearer anal- ogy than any the Go…

• #19

  Cochran. Elgin, 567 U. S., at 22. Because that is so, the parties' claims are “ `collateral' to any Commission orders or rules from which review might be sought.” Free Enter- prise Fund, 561 U. S., at 490. The Government's contrary argument would strip the col- lateralism factor of its appropriate function. In th…

• #20

  tion marks and alterations omitted); see supra, at 188. That statement covers Axon's and Cochran's claims that ALJs are too far insulated from the President's supervision. And Axon's constitutional challenge to the combination of pros- ecutorial and adjudicative functions is of a piece—similarly distant from the …

• #21

  and Cochran's claims that the structure, or even existence, of an agency violates the Constitution. For the reasons given above, those claims cannot receive meaningful judicial re- view through the FTC Act or Exchange Act. They are col- lateral to any decisions the Commissions could make in in- Page Proof Pending…

• #22

  by substantial evidence,” § 78y(a)(4); see § 45(c) (“if sup- ported by evidence”), a highly deferential standard of re- view. 1 The reviewing court also cannot take its own evi- dence—it can only remand the case to the agency for further proceedings. See §§ 45(c) and 78y(a)(5). This mixed system—primary adjudica…

• #23

  Greene's Energy Group, LLC , 584 U. S. –––, ––– (2018). As I have explained, when private rights are at stake, full Article III adjudication is likely required. Private rights encompass “the three `absolute' rights,” life, liberty, and property, “so called because they `appertain and belong to particular men mere…

• #24

  574 U. S. 318, 344, n. 2 (2015) (Thomas, J., dissenting) (inter- nal quotation marks omitted). It was understood at the founding that such governmental privileges (some of which we today call Government benefts and entitlements) “could be taken away without judicial process.” Sessions v. Di- maya, 584 U. S. –––, …

• #25

  evidence” must be “accepted as fnal,” ICC v. Union Pacifc R. Co., 222 U. S. 541, 547 (1912). Following the Court's lead, Congress codifed the appellate review model in the two stat- utes at issue here. The Federal Trade Commission Act pro- vided that “the fndings of the commission as to the facts, if supported by…

• #26

  cies' authority “to act as factfnding adjuncts to the federal judiciary on a broad array of statutory claims, including claims for monetary relief.” Nelson 602. 3 II As I have previously explained, “[b]ecause federal admin- istrative agencies are part of the Executive Branch, it is not clear that they have powe…

• #27

  B&B Hardware , 575 U. S., at 164 (Thomas, J., dissenting) (“[H]owever broadly `court of competent jurisdiction' was defned, it would require quite a leap to say that the concept encompasses administrative agencies, which were recognized as categorically different from courts” (alteration omitted)); see also Hambu…

• #28

  ing individuals of vested property rights, they must not serve even as fact-fnders subject to judicial deference.” Mascott 25 (footnote omitted). In sum, whether any form of administrative adjudication is constitutionally permissible likely turns on the nature of the right in question. If private rights are at st…

• #29

  Justice Gorsuch, concurring in judgment. I agree with the Court that Michelle Cochran and Axon Enterprise are entitled to their day in court. But to my mind the reason why has nothing to do with the “Thunder Page Proof Pending Publication 205 Cite as: 598 U. S. 175 (2023) Gorsuch, J., concurring in judgment Ba…

• #30

  Thunder Basin requires litigants and courts to ask whether a “ `comprehensive review process' ” exists. Ante, at 186. What does that mean? It seems a review process will “typi- cally” qualify as “comprehensive” when “review in a court of appeals follow[s] the agency's own review.” Ibid. But “typically” does not m…

• #31

  “distinctive knowledge,” ante, at 186. Even after you make it through these twists and turns, a fnal surprise sometimes awaits. The Court holds that all three Thunder Basin factors favor Ms. Cochran and Axon, so their cases may proceed in district court. Ante, at 195. But what happens when the factors point in di…

• #32

  putes that § 1331 represents a valid exercise of Congress's authority to regulate the jurisdiction of the district courts. No one questions that § 1331 permits cases like those before us to proceed. No Member of the Court points to any stat- ute Congress has adopted that speaks otherwise. Under the law, that shou…

• #33

  But the government's arguments from those laws are so im- probable that the Court barely mentions them. I pause to walk through each only to illustrate how these cases should have been resolved. 2 These are only a few of the conceptual problems with the Thunder Basin project. Here's another: If the Thunder Basin …

• #34

  unconstitutionally structured. See ante, at 182–183. That is exactly the kind of “here-and-now injury” this Court has held “can be remedied by a court” without regard to the eventual outcome of agency proceedings. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. –––, ––– (2020) (internal quotation…

• #35

  In both cases, the relevant statutes guide the way. Sec- tion 1331 grants district courts the power to hear Ms. Coch- ran's and Axon's claims and no other law takes that power away. Resolving jurisdictional disputes by looking to the terms of the statutes Congress has adopted may hold none of the suspense that co…

• #36

  –––, ––– (2022). Judges therefore “beneft from straightfor- ward rules under which they can readily assure themselves of their power to hear a case,” Hertz, 559 U. S., at 94, while “adventitious” rules leave them with “almost impossible” tasks to perform that squander their limited resources, Ex- ecutive Jet Avia…

• #37

  Securities Exchange Act of 1934 and Rules 13a–1 and 13a– 13 thereunder,” as well as “aid[ing] and abett[ing] . . . Rule 2–02(b)(1) violations.” In re Hall, SEC Initial Decision Re- lease No. 1114, p. 1 (2017). In English, the SEC alleged that Ms. Cochran had failed to complete auditing checklists, leav- ing certa…

• #38

  Fund. Lucia held that SEC ALJs are inferior offcers under the Constitution's Appointments Clause. 585 U. S., at –––. And Free Enterprise Fund held that the President must retain adequate authority to supervise and even re- move such offcers. 561 U. S., at 492. In 2019, the district court dismissed Ms. Cochran's s…

• #39

  of one before an agency a small thing. Agencies like the SEC and FTC combine the functions of investigator, prose- cutor, and judge under one roof. They employ relaxed rules of procedure and evidence—rules they make for themselves. The numbers reveal just how tilted this game is. From 2010 to 2015, the SEC won 90…

• #40

  forcement agency to extract from parties under investigation commit- ments well beyond what the agency could obtain in litigation”). Page Proof Pending Publication 217 Cite as: 598 U. S. 175 (2023) Gorsuch, J., concurring in judgment * When Congress withholds jurisdiction, we must respect its choice. But when …