As 2016 wound down, the administrative law judges (ALJs) at the Securities and Exchange Commission had issued more than 150 decisions. The year before, they racked up more than 200 decisions before celebrating New Year's Eve. These individuals work hard, and they are fine exemplars of the devoted people who serve in a judicial capacity within federal agencies.
Exactly what they do, however, deserves more attention. When the SEC charges an individual with securities fraud, it can choose to proceed in the courts—by bringing a civil-enforcement action or by referring the case to the Justice Department for criminal prosecution. Either way, the defendant enjoys the full range of the Constitution's procedural protections. But the commission also has the option to charge defendants administratively, before its administrative law judges. And when it thus pursues a case in-house, rather than in the courts, the defendant doesn't get a jury, a real judge, or the real due process of law.