The Administrative Procedure Act’s provisions on formal adjudication give individuals charged in administrative enforcement actions the right to an in-person oral hearing. But not always. Agency prosecutors can circumvent formal hearing procedures without the consent of the defendant by resolving cases on “administrative summary judgment.” A 1971 Harvard Law Review Article endorsed this procedure as a way for agency prosecutors to avoid “futile” hearings, and courts have upheld it based on the same technocratic justification. Yet administrative procedure is not merely an instrument to be expertly calibrated by administrators; it is a mechanism of political control. When Congress assigns enforcement of a given program to a formal adjudication regime, it is exercising its authority to “stack the deck,” giving defendants access to elaborate procedural protections and limiting or channeling the enforcement program. Administrative summary judgment “unstacks the deck”—it unwinds Congress’s procedural controls and allows an agency to recalibrate its enforcement priorities.
At the Securities and Exchange Commission, many administrative proceedings are now resolved on “summary disposition” without any in-person hearings. The recent expansion of summary dispositions has facilitated a broad shift in the agency’s enforcement priorities toward easy-to-prosecute offenses, enabling the agency to show Congress a “record number of enforcement actions” year after year. That figure has (apparently) significant political value, but does not indicate anything about the effectiveness of the SEC’s enforcement program.
Setting enforcement priorities is a critical function for agencies like the SEC that are charged with enforcing a vast and complex array of legal obligations, but which have resources to pursue only a relatively small number of possible violations. Securities scholars have long debated the SEC’s enforcement priorities, but have overlooked the role administrative adjudication procedure plays in shaping those priorities—as both a vehicle for congressional control and administrative rebellion.