Page:Axon Enterprise v. FTC.pdf/18

Rh action to a court of appeals. So Free Enterprise Fund’s analysis of the judicial review factor does not control.

Yet a problem remains, stemming from the interaction between the alleged injury and the timing of review. To see the difficulty, think first 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 fine assessed on the company or reinstated the employee with backpay. But not so here. The harm Axon and Cochran allege is “being subjected” to “unconstitutional agency authority”—a “proceeding by an unaccountable ALJ.” Brief for Axon 36; see Brief for Cochran 37 (contending 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) (slip op., at 10) (internal 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 illegitimate 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 constitutional 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 review schemes—involving not only agency action