When a respondent to a regulatory enforcement action counterattacks with a “fundamental, even existential” challenge to the very constitutionality of the prosecuting agency, may that claim be decided in the first instance by a district judge?  Or must it await appellate review by a circuit court of appeals after the regulators have taken final action?

In the very recent case of Axon Enterprise, Inc. v. F.T.C., 598 U.S. ___ (No. 21-86) (April 14, 2023), the U.S. Supreme Court, invoking the separation of powers and speaking virtually as one, ruled that, agency expertise notwithstanding, administrative law judges are not well suited to resolve constitutional challenges, whereas, in sharp contradistinction, such controversies very much fall within the purview of the Article III bench.

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