Page:Axon Enterprise v. FTC.pdf/40

From Wikisource
Jump to navigation Jump to search
This page has been proofread, but needs to be validated.
Cite as: 598 U. S. ____ (2023)
7

Gorsuch, J., concurring in judgment

hoping to contest “a final order of the Commission.” But just as plainly, Ms. Cochran does not seek to challenge an SEC final order. Nor could she, because the agency has not entered one in her case. Ms. Cochran does not even seek relief in anticipation of a final agency order. Instead, she seeks to avoid being hauled before an agency that she alleges is unconstitutionally structured. See ante, at 4. 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) (slip op., at 10).

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 conclusion 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 Accounting Oversight Bd., 561 U. S. 477, 491, n. 2 (2010). Far from barring Ms. Cochran’s path to court, then, the Exchange Act expressly preserves it.

The story repeats itself when it comes to Axon. The government insists that §5(c) of the FTC Act precludes district 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