Does the Fifth Amendment Apply to the SEC’s Civil Enforcement Authority?

The U.S. Court of Appeals for the Federal Circuit has instructed courts to leave no doubt about their obligation to protect private property rights. Pending before the U.S. Court of Federal Claims is a case challenging the over-zealous civil enforcement authority of the Securities and Exchange Commission as an unconstitutional taking.

What Is a Judicial Taking?

The rule under the Tucker Act, the Court of Federal Claims’ jurisdictional statute, is that the CFC cannot review the merits of another court’s decisions. Takings plaintiffs who allege that their property rights have been taken by judicial actions of another court may have their complaint dismissed for lack of jurisdiction. Or, in some instances, the allegations may be considered to state a judicial taking claim.