FINRA is a nominally private non-profit corporation that regulates the securities brokerage industry subject to oversight by the U.S. Securities and Exchange Commission (SEC). But it wields vast legislative, executive, and adjudicatory powers over more than 600,000 individual brokers and thousands of broker-dealer firms nationwide. In a typical year FINRA bars hundreds of brokers from the securities industry and imposes tens of millions of dollars in aggregate fines against industry participants. The U.S. District Court for the District of Columbia concluded that FINRA is not a “state actor”—leaving the regulator unbound by most constitutional restraints when it investigates, prosecutes, and punishes alleged wrongdoers. That conclusion unwittingly confirmed, however, that FINRA violates both Article II of the Constitution, which prohibits empowering private law enforcement without close Executive Branch supervision, and the “private nondelegation doctrine,” a vital judicial principle that reserves binding federal power for the federal government alone to wield.
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