Axon Enterprise, Inc. v. FTC

P R E L I M I N A R Y P R I N T
Volume 598 U. S. Part 1
Pages 175–217
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
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
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175 OCTOBER
TERM, 2022
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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176 AXON
ENTERPRISE, INC. v. FTC
Syllabus
FTC's adjudications. On appeal, the Ninth Circuit affrmed the district
cour
t'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

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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
re
view 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. Dun ford.
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180 AXON
ENTERPRISE, INC. v. FTC
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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Opinion of the Court
dress statutory violations either by bringing civil suits in fed-
era
l 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-
descr
ibed 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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Opinion of the Court
President. See App. 53–54, 60–62. And because that was
tr
ue (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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ENTERPRISE, INC. v. FTC
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Cochran's and Axon's suits met an identical fate in district
cour
t: 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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Opinion of the Court
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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186 AXON
ENTERPRISE, INC. v. FTC
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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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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188 AXON
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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 frami ng the questi on 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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Opinion of the Court
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
straightfor
ward: 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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Opinion of the Court
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
civ
il 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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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
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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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“agency adjudications are generally ill suited to address
str
uctural 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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196 AXON
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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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district court, with the court of appeals providing judicial
re
view.” 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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198 AXON
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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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stitute a `core' of cases that . . . must be resolved by Article III
cour
ts—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

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Article III because “Congress has considerable power to
str
ucture [ 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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202 AXON
ENTERPRISE, INC. v. FTC
Thomas, J., concurring
core private rights.” B&B Hardware, Inc. v. Hargis Indus-
tr
ies, 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 Cite
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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
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one, Axon and Cochran face the threat of signifcant mone-
t
ary 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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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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206 AXON
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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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is just one easy question too, focused on whether the plain-
ti
ff '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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it the “true rule” that “statutes clearly defning the juris-
dic
tion 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-
ti
on 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,

212 AXON
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IV
W
hile 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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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

214 AXON
ENTERPRISE, INC. v. FTC
Gorsuch, J., concurring in judgment
agency's enforcement division.” J. Eaglesham, SEC Judges'
F
airness 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
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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
T
exas 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”).
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Gorsuch, J., concurring in judgment
*
W
hen 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.
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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