FINRA Wields Substantial Executive Power and Therefore Must Be Subject to Presidential Control Through Appointment and Removal
The American Free Enterprise Chamber of Commerce (AmFree Chamber) filed an amicus brief in Alpine Securities v. FINRA.
AmFree Chamber’s Position: FINRA seeks to carve out for itself what is effectively a Constitution-free twilight zone—private enough to avoid the Constitution’s structural appointment-and-removal safeguards, but public enough to garner immunity from private suit and avoid any non-delegation concerns, all while maintaining a degree of operational independence that prevents any meaningful supervision or control from the elected President or those accountable to him.
The Constitution cannot tolerate such an arrangement. Congress may not “reap the
benefits of delegating regulatory authority while absolving the federal government
of all responsibility for its exercise. The federal government cannot have its cake and eat it too.”
The American Free Enterprise Chamber of Commerce believes the ruling allowing for such an arrangement must be overturned and the power returned to elected officials responsible to voters.
The American Free Enterprise Chamber of Commerce (“AmFree”) represents hard-working entrepreneurs and businesses across all sectors to serve as the voice for pro-business and free market values. AmFree conducts research and develops policy initiatives designed to support free, fair, and open markets that spur economic growth.
For decades, AmFree’s members—and American businesses more broadly—
have been saddled with overly burdensome regulations and harmed by the insatiable expansion of the federal regulatory state. This relentless regulatory advance has had a particularly pernicious effect on the U.S. financial services sector, undermining the ability of firms to provide market access to ordinary Americans and threatening the status of the U.S.’s world-leading financial markets.
In response, AmFree launched the Center for Legal Action (“CLA”) to address these issues in court. Led by two-time former U.S. Attorney General William P. Barr, the CLA’s mission is to return power to the people and their elected representatives.
Central to that aim is ensuring that government agencies—and especially “private” entities masquerading as government agencies—remain properly accountable to elected officials and, ultimately, the people of the United States.
To that end, the CLA files amicus briefs, such as this, in important regulatory and constitutional cases to support reining in the administrative state and promoting constitutional accountability. Curtailing such bureaucratic overreach, and ensuring officials remain properly accountable to the political branches, is imperative for the growth, prosperity, and competitiveness of the American economy and financial markets.
Read the amicus brief file here.