(Slip Opinion)              OCTOBER TERM, 2022                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       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
  enforcement actions initiated in the Securities and Exchange Commis-
  sion (SEC) and the Federal Trade Commission (FTC)—each filed suit
  in federal district court challenging the constitutionality of the agency
  proceedings against them. When, as in the enforcement actions
  against Cochran and Axon, a Commission elects to institute adminis-
  trative proceedings to address statutory violations, it typically dele-
  gates the initial adjudication to an Administrative Law Judge (ALJ)
  with authority to resolve motions, hold a hearing, and then issue a
  decision. As prescribed by statute, a party objecting to the Commission
  proceedings makes its claims first 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 insufficiently accountable to the President, in violation of
  separation-of-powers principles. Axon also attacked as unconstitu-
  tional the combination of prosecutorial and adjudicatory functions in
  the FTC. Each suit premised jurisdiction on district courts’ ordinary
  federal-question authority to resolve “civil actions arising under the
  Constitution, laws, or treaties of the United States.” 

.
     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
——————
  * 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.
2                    AXON ENTERPRISE, INC. v. FTC

                                   Syllabus

    review scheme specified 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
    FTC’s adjudications. On appeal, the Ninth Circuit affirmed the dis-
    trict court’s dismissal of Axon’s constitutional challenges to the FTC
    proceeding, 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, finding 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 uncon-
 stitutional the structure or existence of the SEC or FTC. Pp. 7–18.
    (a) Although district courts may ordinarily hear challenges to fed-
 eral agency actions by way of §1331’s jurisdictional grant for claims
 “arising 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 review scheme divests district courts of their ordinary jurisdic-
 tion over covered cases. But the statutory scheme does not necessarily
 extend to every claim concerning agency action. See, e.g., Thunder Ba-
 sin Coal Co. v. Reich, 

, 207–213. This Court has identi-
 fied three considerations—commonly known as the Thunder Basin fac-
 tors—to determine whether particular claims concerning agency
 action are “of the type Congress intended to be reviewed within th[e]
 statutory structure.” 

. First, could precluding district court
 jurisdiction “foreclose all meaningful judicial review” of the claim? 

 at 212–213. Next, is the claim “wholly collateral” to the statute’s re-
 view provisions? Id, at 212. And last, is the claim “outside the agency’s
 expertise”? 

    The Court has twice held specific claims to fit within a statutory re-
 view scheme, based on the Thunder Basin factors. In Thunder Basin
 itself, a coal company subject to the Mine Act filed suit in district court
 instead of asserting its claims—as a statutory scheme prescribed—
 first 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 officials with access to the work-
 place in accordance with the Mine Act. The company also objected on
                   Cite as: 

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                              Syllabus

due process grounds to the agency’s imposition of a fine before holding
a hearing. See 

. The Court held that the district court
lacked jurisdiction over those claims, emphasizing the commission’s
“extensive experience” in addressing the statutory issues raised, as
well as its ability to resolve them in light of its “expertise” over the
mining industry. 

 at 214–215. The Court acknowledged the com-
pany’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.” 

.
   The Court applied similar reasoning in Elgin v. Department of
Treasury, 

, which involved a statutory review scheme that
directed federal employees challenging discharge decisions to seek re-
view in the Merit Systems Protection Board (MSPB) and then, if
needed, in the Federal Circuit. Elgin filed suit in district court when
the government fired 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 unconstitutional, the Court of Appeals could—and that was
sufficient to ensure “meaningful review” of Elgin’s claim. 

.
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 applied the Thunder
Basin factors to determine that an accounting firm’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 deter-
mined that the Exchange Act provided no “meaningful avenue of re-
lief.” 561 U. S., at 490–491. And even if the SEC took up a matter
arising from the Board’s investigation of the firm, the firm’s constitu-
tional challenge to the Board’s existence would be “collateral” to the
subject of that proceeding, as well as “outside the Commission’s com-
petence and expertise.” 

 Pp. 7–10.
   (b) The Court must decide if the constitutional claims here are “of
the type” Congress thought belonged within a statutory review
scheme. Thunder Basin, 

. Like the accounting firm
in Free Enterprise Fund, Cochran and Axon assert sweeping constitu-
tional claims: They charge that the SEC and FTC are wielding author-
ity unconstitutionally 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.
4                     AXON ENTERPRISE, INC. v. FTC

                                    Syllabus

       First, preclusion of district court jurisdiction “could foreclose all
    meaningful judicial review.” 

 at 212–13. Adequate judicial review
    does not usually demand a district court’s involvement. And the stat-
    utes at issue in this case provide for judicial review 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 pro-
    ceeding, led by an illegitimate decisionmaker. Seila Law LLC v. Con-
    sumer Financial Protection Bureau, 

, ___. That injury is
    impossible to remedy once the proceeding is over, which is when ap-
    pellate review kicks in. Judicial review of the structural constitutional
    claims would thus come too late to be meaningful. To be sure, “the
    expense and disruption” of “protracted adjudicatory proceedings” on a
    claim do not alone justify immediate review. FTC v. Standard Oil Co.
    of Cal., 

. But the nature of the injury here is differ-
    ent: As with a right “not to stand trial” that is “effectively lost” if review
    is deferred until after trial, see Mitchell v. Forsyth, 

,
    Axon and Cochran will lose their rights not to undergo the complained-
    of agency proceedings if they cannot assert those rights until the pro-
    ceedings 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 adjudi-
    cate or those they would adjudicate in assessing the charges against
    Axon and Cochran. Elgin, 

. The parties’ claims are
    thus “ ‘collateral’ 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 [Commis-
    sions’] expertise.” Thunder Basin, 

. The Court in Free
    Enterprise Fund determined that claims that tenure protections vio-
    late Article II raise “standard questions of administrative” and consti-
    tutional law, detached from “considerations of agency policy.” 561
    U. S., at 491. That statement 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 prosecuto-
    rial and adjudicative functions in the FTC is similarly distant from the
    FTC’s “competence and expertise.” Ibid. The Commission knows a
    good deal about competition policy, but nothing special about the sep-
    aration of powers. For that reason, “agency adjudications are gener-
    ally ill suited to address structural constitutional challenges”—like
    those maintained here. Carr v. Saul, 

, ___. The Court
    concludes that the claims here are not the type the statutory review
    schemes at issue reach. Pp. 10–18.
No. 21–86, 

, reversed and remanded; No. 21–1239, 

, affirmed and remanded.
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                                Syllabus

   KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C.J.,
and THOMAS, ALITO, SOTOMAYOR, KAVANAUGH, BARRETT and JACKSON, JJ.,
joined. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed an opin-
ion concurring in the judgment.
                       Cite as: 

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                             Opinion of the Court

    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash-
    ington, D. C. 20543, of any typographical or other formal errors, in order that
    corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                           Nos. 21–86 and 21–1239
                                   _________________


        AXON ENTERPRISE, INC., PETITIONER
21–86                 v.
        FEDERAL TRADE COMMISSION, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT



 SECURITIES AND EXCHANGE COMMISSION, ET AL.,
                PETITIONERS
21–1239              v.
             MICHELLE COCHRAN
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                                 [April 14, 2023]

  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-
sufficiently accountable to the President, in violation of
separation-of-powers principles. And one respondent at-
tacks as well the combination of prosecutorial and adjudi-
catory functions in a single agency. The challenges are fun-
damental, even existential. They maintain in essence that
the agencies, as currently structured, are unconstitutional
in much of their work.
2              AXON ENTERPRISE, INC. v. FTC

                      Opinion of the Court

   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’ proceed-
ings follow a well-trod path. As prescribed by statute, a
party makes its claims first 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’ constitu-
tional challenges to the Commissions’ structure. The an-
swer is yes. The ordinary statutory review scheme does not
preclude a district court from entertaining these extraordi-
nary claims.
                              I
   Congress established the SEC to protect investors in se-
curities markets, and created the FTC to promote fair com-
petition. The Commissions enforce, respectively, the Secu-
rities Exchange Act and the FTC Act (among other laws).
See 15 U. S. C. §78a et seq. (Exchange Act); 

et seq. (FTC Act). Those Acts authorize the Commissions to
address statutory violations either by bringing civil suits in
federal district court or by instituting their own adminis-
trative 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
                  Cite as: 

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                      Opinion of the Court

as “neglect of duty” or “malfeasance.” 

(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 deci-
sion. See 

.21–3.56 (2021); 

.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 

.52–3.53; 

.410–201.411. Upon completion of internal review,
the Commission enters a final decision. See 

;

(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); 

(a).
   The Exchange Act and FTC Act both provide for review
of a final Commission decision in a court of appeals, rather
than a district court. Under the Exchange Act, “[a] person
aggrieved by [an SEC] final order . . . may obtain review of
the order” by filing a petition in a court of appeals. 15
U. S. C. §78y(a)(1). That petition gives the appellate court
“jurisdiction” to “affirm 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 “affirm[], modify[ ], or
set[ ] aside the order.” §45(c).
   The cases before us, though, did not take the above-
described course. In each, the respondent in an adminis-
trative enforcement action sued in district court prior to an
ALJ decision, seeking to enjoin the Commission’s proceed-
ing. Each suit charged that some fundamental aspect of the
Commission’s structure violates the Constitution; that the
violation made the entire proceeding unlawful; and that be-
ing subjected to such an illegitimate proceeding causes le-
gal injury (independent of any rulings the ALJ might
make). Finally, each suit premised jurisdiction on district
4              AXON ENTERPRISE, INC. v. FTC

                      Opinion of the Court

courts’ ordinary federal-question authority—their power,
under 

, to resolve “civil actions arising un-
der 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 first case arises from an SEC enforcement action
brought against Michelle Cochran, a certified public ac-
countant. 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 improperly appointed. See Lucia v. SEC, 

, ___ (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. Be-
fore the new ALJ hearing began, she sued the Commission
in federal district court, asserting jurisdiction under §1331.
Cochran’s complaint focused on the two layers of tenure
protection all ALJs hold: By statute, those officials 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 2. That
arrangement, Cochran asserted, so greatly insulates ALJs
from presidential supervision as to violate the separation of
powers—more specifically, Article II’s vesting of executive
power in the President. See App. 53–54, 60–62. And be-
cause that was true (Cochran continued), ALJs could not
constitutionally exercise power: They could neither hold
any hearings nor make any decisions. Cochran thus sought
declaratory and injunctive relief freeing her of the obliga-
tion “to submit to an unconstitutional 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
                      Cite as: 

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                           Opinion of the Court

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 dis-
trict court, premised on federal-question jurisdiction. Like
Cochran, Axon asserted that the Commission’s ALJs could
not constitutionally exercise governmental authority be-
cause of their dual-layer protection from removal. In addi-
tion, Axon claimed that the combination of prosecutorial
and adjudicative functions in the Commission renders all of
its enforcement 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 similarly to Cochran, Axon asked the court to enjoin
the FTC “from subjecting” it to the Commission’s “unfair
and unconstitutional internal forum.” 

; see 

. 1
   Cochran’s and Axon’s suits met an identical fate in dis-
trict court: dismissal for lack of jurisdiction. The district
court in Cochran’s case held that the review scheme speci-
fied 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 proceedings,” including Cochran’s constitutional ones.
App. to Pet. for Cert. in No. 21–1239, p. 141a. Likewise, the
——————
  1 In this Court, Axon contends that it separately objected to “the un-

codified, 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,

 (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.
6              AXON ENTERPRISE, INC. v. FTC

                     Opinion of the Court

district court in Axon’s case found that the FTC Act’s com-
parable review scheme displaces §1331 jurisdiction for
claims concerning the FTC’s adjudications. So Axon had to
raise its structural constitutional claims “during the admin-
istrative process and then renew them” if and when “seek-
ing 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 conclu-
sion as the district courts. See 

 (2021). Re-
viewing this Court’s precedents, the Ninth Circuit acknowl-
edged that a statutory review scheme precluding district
court jurisdiction—like the FTC Act’s—might not extend to
every “type of claim[ ].” 

 at 1187 (citing Thunder Basin
Coal Co. v. Reich, 

 (1994)). But the court
decided that Axon’s constitutional challenges fell within the
FTC Act’s scheme, mainly because the scheme guaranteed
them “meaningful judicial review.” 

. The en banc Fifth Circuit disagreed as to the equiv-
alent SEC question. See 

 (2021). The court
maintained that “Cochran’s removal power claim is not the
type of claim Congress intended to funnel through the Ex-
change Act’s statutory-review scheme.” 

 at 206–207
(also citing Thunder Basin, 

). Drawing on
considerations identified in this Court’s opinions, the Fifth
Circuit reasoned 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 statu-
tory-review scheme”; and that the claim fell “outside the
SEC’s expertise.” 20 F. 4th, at 207–208.
   We granted certiorari in both cases to resolve the divi-
sion. 

 (2022); 

 (2022). We now
conclude that the review schemes set out in the Exchange
Act and the FTC Act do not displace district court jurisdic-
tion over Axon’s and Cochran’s far-reaching constitutional
                  Cite as: 

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                      Opinion of the Court

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, 

. 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 dis-
trict 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, 

, 10–15 (2012); see also
Free Enterprise Fund v. Public Company Accounting Over-
sight Bd., 

, 489 (2010) (noting that statutory
schemes for agency review “[g]enerally” are “exclusive”).
The agency effectively fills in for the district court, with the
court of appeals providing judicial review.
   But a statutory review scheme of that kind does not nec-
essarily extend to every claim concerning agency action.
Our decision in Thunder Basin made that point clear. After
finding 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 partic-
ular claims brought were “of the type Congress intended to
be reviewed within this statutory structure.” 

         AXON ENTERPRISE, INC. v. FTC

                      Opinion of the Court

208, 212. The Court identified 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? 

 at 212–213. Next, is the claim “wholly
collateral to [the] statute’s review provisions”? 

(internal quotation marks omitted). And last, is the claim
“outside the agency’s expertise”? 

 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 first
Thunder Basin factor recognizes that Congress rarely al-
lows claims about agency action to escape effective judicial
review. See, e.g., Bowen v. Michigan Academy of Family
Physicians, 

 (1986). The second and third
reflect in related ways the point of special review provi-
sions—to give the agency a heightened role in the matters
it customarily handles, and can apply distinctive knowledge
to.
   This Court has twice held specific claims to fit within a
statutory review scheme, based on the Thunder Basin fac-
tors. In Thunder Basin itself, a coal company subject to the
Mine Act filed 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 officials with access to
the workplace, as the Mine Act apparently required. The
company claimed a right to exclude the officials under an-
other statute; it also objected on due process grounds to the
agency’s imposing a fine before holding a hearing. See 

; see also Elgin, 

. We held
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                      Opinion of the Court

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 “ex-
pertise” 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
challenge; but that claim could be “meaningfully addressed
in the Court of Appeals.” 

.
   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 specific court of appeals).
But Elgin filed suit in district court when he was fired 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, violated
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 sufficient
to ensure “meaningful review” of Elgin’s claim. 

. 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.” 

. And we observed that such an action
could involve “threshold” and other “questions unique to the
employment context” that “fall[] squarely within the
MSPB’s expertise.” 

 at 22–23.
   But in Free Enterprise Fund, this Court went the opposite
way, holding that certain claims landed outside a statutory
review scheme. The scheme was the Exchange Act’s—the
same as in Cochran’s case. And the main claim in Free En-
terprise Fund bears more than a passing resemblance to one
Axon and Cochran raise: It, too, alleged that officials with
10              AXON ENTERPRISE, INC. v. FTC

                      Opinion of the Court

two layers of tenure protection were unconstitutionally in-
sulated from presidential control. The officials 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
firm’s auditing practices, the firm took its Article II claim
to district court. This time we held that the court had ju-
risdiction of the action, based on the Thunder Basin factors.
We found that the Exchange Act provided no “meaningful
avenue of relief ” for the firm, given the separation between
the Board and the Commission. 561 U. S., at 490–491 (in-
ternal 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 firm’s constitutional chal-
lenge would be “collateral” to the subject of that proceeding.
The firm, we observed, “object[s] to the Board’s existence,
not to any of its auditing standards.” Id., at 490. Finally,
we held, the firm’s claim was “outside the Commission’s
competence and expertise.” Id., at 491. It raised only a
“standard” issue of administrative and constitutional law,
relating not at all to “considerations of agency policy.” Ibid.
(internal quotation marks and alterations omitted).
                               B
  One way of framing the question 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
within a statutory scheme. Thunder Basin, 

. The claims here are of the same ilk as the one in Free
Enterprise Fund. There, the complaint alleged that the
                  Cite as: 

 (2023)           11

                      Opinion of the Court

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 omit-
ted). Only the Court’s ability to sever the relevant statute’s
for-cause removal provision enabled the Board to keep run-
ning. 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 exer-
cising any power, unless they lose their double-for-cause
tenure protection. 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 prose-
cutorial and adjudicative activities. The challenges here, as
in Free Enterprise Fund, are not to any specific substantive
decision—say, to fining a company (Thunder Basin) or fir-
ing an employee (Elgin). Nor are they to the commonplace
procedures agencies use to make such a decision. They are
instead 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, reflecting 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 factors sig-
nals that a district court has jurisdiction to adjudicate
Axon’s and Cochran’s (like the accounting firm’s) sweeping
constitutional claims.
   We begin with the factor whose application here is least
straightforward: whether preclusion of district court juris-
diction “could foreclose all meaningful judicial review.”
12                 AXON ENTERPRISE, INC. v. FTC

                           Opinion of the Court

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 “meaning-
fully address[ ]” a party’s claims. Thunder Basin, 

; see Elgin, 

 (holding that Congress
provided “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 Par-
ties 39–40. As just described, Free Enterprise Fund’s anal-
ysis on that score relied on the separation between the
Board and the SEC. See supra, at 10. The accounting firm,
recall, was enmeshed in a Board investigation. But some
Board actions never go to the SEC—and the statutory
scheme, we explained, “provides only for judicial review of
Commission action.” 561 U. S., at 490 (emphasis in origi-
nal). That meant the accounting firm, 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 judicial review of SEC and FTC action.
See 

(c), 78y(a). Under those statutes, Axon
and Cochran can (eventually) obtain review of their consti-
tutional claims through an appeal from an adverse agency


——————
  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,

; see Thunder Basin, 

. It is also so, as
Thunder Basin illustrates, regardless of whether the claim involves a
matter of substance (e.g., the coal company’s alleged right to exclude un-
ion officials) or one of procedure (e.g., the company’s asserted entitlement
to an earlier hearing). See 

 at 214–215; supra, at 8–9.
                 Cite as: 

 (2023)           13

                     Opinion of the Court

action to a court of appeals. So Free Enterprise Fund’s anal-
ysis 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 (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. Con-
sumer Financial Protection Bureau, 

, ___
(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 il-
legitimate decisionmaker. And as to that grievance, the
court of appeals can do nothing: A proceeding that has al-
ready 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
14              AXON ENTERPRISE, INC. v. FTC

                      Opinion of the Court

but also civil and criminal litigation—require parties to
wait before appealing, even when doing so subjects them to
“significant burdens.” Brief for Federal Parties 47–49.
That is true, and will remain so: Nothing we say today por-
tends newfound enthusiasm for interlocutory review. Re-
turn, 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 Government says, that “the expense and
disruption” of “protracted adjudicatory proceedings” on a
claim do not justify immediate review. FTC v. Standard
Oil Co. of Cal., 

 (1980); see, e.g., Myers v.
Bethlehem Shipbuilding Corp., 

 (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 deci-
sionmaking process. See supra, at 13. And more, subjec-
tion to that process irrespective of its outcome, or of other
decisions made within it. A nearer analogy than any the
Government offers is to our established immunity doc-
trines. There, we have identified certain rights “not to
stand trial” or face other legal processes. Mitchell v. For-
syth, 

 (1985). And we have recognized
that those rights are “effectively lost” if review is deferred
until after trial. 

 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 pro-
ceedings 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
                  Cite as: 

 (2023)            15

                      Opinion of the Court

earlier, guided Free Enterprise Fund’s view that the ac-
counting firm’s challenge qualified as “collateral.” See 561
U. S., at 490; supra, at 10. The firm, the court reasoned,
“object[ed] to the Board’s existence, not to any of [the] au-
diting 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 particular
about how that power was wielded. The parties’ separation-
of-powers claims do not relate to the subject of the enforce-
ment actions—in the one case auditing practices, in the
other a business merger. Cf. Mohawk Industries, Inc. v.
Carpenter, 

 (2009) (considering as part of
the “collateral order doctrine,” which governs appeals in
non-agency litigation, whether a question is “separate 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, 

 (1985) (favoring review of
such preliminary matters along with the agency’s final or-
der). 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 ad-
judicate in assessing the charges against Axon and
Cochran. Elgin, 

. Because that is so, the
parties’ claims are “ ‘collateral’ to any Commission orders or
rules from which review might be sought.” Free Enterprise
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
16             AXON ENTERPRISE, INC. v. FTC

                     Opinion of the Court

firm remained enmeshed in a Board investigation). But the
Government’s argument still conflicts with Free Enterprise
Fund’s reasoning. In addressing why the firm’s claim was
collateral, the Court focused solely on what it was about—
again, that the firm challenged “the Board’s existence,” not
“its auditing standards.” 561 U. S., at 490. And anyway,
the Government’s theory ill fits the point of the Thunder
Basin inquiry—to decide when a particular claim is “of the
type” to fall outside a statutory review scheme. 

. 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.
Beneficial Industrial Loan Corp., 

 (1949)
(allowing an interlocutory appeal from a district court’s
“collateral” ruling, “independent of the cause itself ”). The
Government’s redefinition of what counts as collateral
would effectively foreclose that possibility.
   Third and finally, Cochran’s and Axon’s claims are “out-
side the [Commissions’] expertise.” Thunder Basin, 

. 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 administrative” and constitutional law, de-
tached from “considerations of agency policy.” 561 U. S., at
491 (internal quotation marks and alterations omitted); see
supra, at 10. 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 prosecutorial 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
                  Cite as: 

 (2023)            17

                      Opinion of the Court

about the separation of powers. For that reason, we ob-
served two Terms ago, “agency adjudications are generally
ill suited to address structural constitutional challenges”—
like those maintained here. Carr v. Saul, 

, ___
(2021) (slip op., at 9).
   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 “statu-
tory, regulatory, or factual”—“that ‘may obviate the need to
address the constitutional challenge.’ ” Brief for Federal
Parties 54 (quoting Elgin, 567 U. S., at 22–23). The first
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 employ-
ment issues surrounding the employee’s contention that the
Equal Protection Clause barred his discharge. See 567
U. S., at 22–23; supra, at 9. 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 redefine what it means for claims to be “collat-
eral” to an agency action. See supra, at 15–16.) And unlike
in Elgin, ruling for Axon and Cochran on expertise-laden
grounds would not “obviate the need” to address their con-
stitutional 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 mat-
ter how much expertise could be “brought to bear” on the
other issues these cases involve. Thunder Basin, 

.
   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
18             AXON ENTERPRISE, INC. v. FTC

                     Opinion of the Court

given above, those claims cannot receive meaningful judi-
cial review through the FTC Act or Exchange Act. They are
collateral to any decisions the Commissions could make in
individual 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. 

. A district court can therefore
review them.
                        *    *     *
  We accordingly reverse the judgment of the Court of Ap-
peals for the Ninth Circuit, affirm 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.
                  Cite as: 

 (2023)            1

                     THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES
                          _________________

                    Nos. 21–86 and 21–1239
                          _________________


        AXON ENTERPRISE, INC., PETITIONER
21–86                 v.
        FEDERAL TRADE COMMISSION, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT



 SECURITIES AND EXCHANGE COMMISSION, ET AL.,
                PETITIONERS
21–1239              v.
             MICHELLE COCHRAN
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                         [April 14, 2023]

   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 vesting administrative agencies with primary au-
thority to adjudicate core private rights with only deferen-
tial 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
2                 AXON ENTERPRISE, INC. v. FTC

                        THOMAS, J., concurring

scheme of review,” as it did in the provisions of the Securi-
ties Exchange Act and the Federal Trade Commission Act
at issue here. Ante, at 7; see 

(c) and 78y(a).
Under such schemes, administrative agencies may impose
orders and penalties on private parties; adjudicate them be-
fore 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 fills in
for the district court, with the court of appeals providing
judicial review.” Ante, at 7. That Article III review is
sharply limited. For example, under the administrative re-
view schemes at issue here, the reviewing court must treat
agency findings of fact as “conclusive” so long as they are
“supported by substantial evidence,” §78y(a)(4); see §45(c)
(“if supported by evidence”), a highly deferential standard
of review.1 The reviewing court also cannot take its own
evidence—it can only remand the case to the agency for fur-
ther proceedings. See §§45(c) and 78y(a)(5).
   This mixed system—primary adjudication by an execu-
tive agency subject to only limited Article III review—is un-
like the system that prevailed for the first century of our
Nation’s existence. During that period, judicial review was
“all-or-nothing”; “either a court had authority to review ad-
ministrative 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, 

, 944, 952 (2011) (Merrill).
This all-or-nothing model rested on a conceptual distinction
——————
  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 

 (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, be-
tween October 2010 and March 2015, SEC won more than 90% of cases
brought before its ALJs as compared to 69% of cases brought before fed-
eral courts).
                      Cite as: 

 (2023)                     3

                         THOMAS, J., concurring

between core private rights, on the one hand, and mere pub-
lic rights and governmental privileges, on the other. “Dis-
position of private rights to life, liberty, and property” was
understood to “fal[l] within the core of the judicial power,
whereas disposition of public rights [was] not.” Wellness
Int’l Network, Ltd. v. Sharif, 

 (2015)
(THOMAS, J., dissenting). Thus, “[t]he measure of judicial
involvement was private right. In particular, the extent to
which the judiciary reviewed actions and legal determina-
tions of the executive depended on private right.” J. Harri-
son, Jurisdiction, Congressional Power, and Constitutional
Remedies, 86 Geo. L. J. 2513, 2516 (1998) (footnote omit-
ted).2 Even today, the distinction “between ‘public rights’
and ‘private rights’ ” continues to inform this Court’s under-
standing of “Article III judicial power.” Oil States Energy
Services, LLC v. Greene’s Energy Group, LLC, 

,
___ (2018) (slip op., at 6).
   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).


——————
  2 This also helps to explain why, in Marbury v. Madison, 

(1803), Chief Justice Marshall found it necessary to first determine
whether Marbury was “entitled to the possession of those evidences of
office, which, being completed, became his property.” 

 (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.
4               AXON ENTERPRISE, INC. v. FTC

                     THOMAS, J., concurring

Such rights could be adjudicated and divested only by Arti-
cle III courts. See 

 (“[A]n exercise of the
judicial power is required ‘when the government wants to
act authoritatively upon core private rights that had vested
in a particular individual’ ” (quoting C. Nelson, Adjudica-
tion in the Political Branches, 

, 569
(2007) (Nelson); alteration omitted)); see also J. Mascott,
Constitutionally Conforming Agency Adjudication, 2 Loyola
U. Chi. J. Reg. Compliance 22, 45 (2017) (Mascott) (“Cases
involving . . . deprivations or transfers of life, liberty, or
property constitute a ‘core’ of cases that . . . must be re-
solved by Article III courts—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, 

 (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 nature.”
Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 

, 344, n. 2 (2015) (THOMAS, J., dissenting) (internal quo-
tation marks omitted). It was understood at the founding
that such governmental privileges (some of which we today
call Government benefits and entitlements) “could be taken
away without judicial process.” Sessions v. Dimaya, 

, ___ (2018) (THOMAS, J., dissenting) (slip op., at 9);
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, 

 (THOMAS, J., dis-
senting).
                              B
  The requirement of plenary Article III adjudication of pri-
vate rights began to change in the early 20th century. As
notions of administrative efficiency came into vogue, courts
                  Cite as: 

 (2023)              5

                     THOMAS, J., concurring

were viewed less as guardians of core private rights and
more as impediments to expert administrative adjudica-
tion. See 

 (CA5 2021) (Oldham, J., con-
curring). After his election in 1904, President Theodore
Roosevelt, who “shared the progressive faith in administra-
tive expertise,” sought to “rei[n] in judicial review” of ad-
ministrative action. Merrill 955. This progressive senti-
ment led to the Hepburn Act, 

, which was
designed to curb judicial review of Interstate Commerce
Commission (ICC) rate orders. Prior to the Hepburn Act,
the ICC was required to file a bill of equity in court to obtain
judicial enforcement of its rate orders. Merrill 955. But,
the Hepburn Act provided that the ICC’s “orders were to be
self-executing thirty days after they became final, unless
‘suspended or set aside by a court of competent jurisdic-
tion’ ”—almost inverting the traditional system. 

(quoting 

). While the Act was silent on the
standard of review, this Court understood “the implied
threat that if [it] did not back off from its aggressive review
practices, more drastic action would be in the offing.” Mer-
rill 959.
   Accordingly, the Court began to develop what is now
known as the “appellate review model.” See 

 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., 

 (1910), the Court held that an ICC order “supported by
evidence” must be “accepted as final,” ICC v. Union Pacific
R. Co., 

 (1912). Following the Court’s
lead, Congress codified the appellate review model in the
two statutes at issue here. The Federal Trade Commission
Act provided that “the findings of the commission as to the
facts, if supported by testimony, shall in like manner be
conclusive” in federal court. 

 (codified, as
amended, at 

(c)). The Securities Exchange
Act of 1934 likewise provided that the SEC’s findings “shall
6               AXON ENTERPRISE, INC. v. FTC

                     THOMAS, J., concurring

be conclusive” “if supported by substantial evidence.” 

 (codified, 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 vio-
lated the separation of powers and Seventh Amendment.
First, in Crowell v. Benson, 

 (1932), the Court
examined the Longshoremen’s and Harbor Workers’ Com-
pensation Act, which authorized administrative agencies to
adjudicate workers’ compensation claims against private
parties. The Court acknowledged that the case was “one of
private right,” 

, but held that Congress had the
authority to place primary factfinding authority in an ad-
ministrative agency, 

. It reasoned that such a
scheme did not violate Article III because “Congress has
considerable power to structure [judicial] proceedings and
to regulate the mechanisms that courts use to ascertain
facts.” Nelson 600.
  Next, in NLRB v. Jones & Laughlin Steel Corp., 

 (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 findings so long as they were “supported by evidence”
in the administrative record. 

. 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, 

; al-
terations omitted). These cases solidified administrative
agencies’ authority “to act as factfinding adjuncts to the fed-
                      Cite as: 

 (2023)                       7

                          THOMAS, J., concurring

eral judiciary on a broad array of statutory claims, includ-
ing 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
core private rights.” B&B Hardware, Inc. v. Hargis Indus-
tries, Inc., 

, 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 agen-
cies regarding matters within the core of the Judicial Vest-
ing Clause. See P. Hamburger, Is Administrative Law Un-
lawful? 297 (2014) (Hamburger) (explaining that,
traditionally, “even at the behest of Congress, the judges
could not defer to the executive record or the facts suppos-
edly established by it, lest they abandon their office of inde-
pendent judgment and the office of juries to decide the

——————
   3 The Court has further blurred the line between adjudications that

require Article III courts and those that do not by equating mere Gov-
ernment benefits and entitlements with core private rights. See, e.g.,
Goldberg v. Kelly, 

, 261–263 (1970) (holding that due pro-
cess rights attach to the deprivation of Government benefits); see also

 (“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 Social Welfare: The Emerging Legal Issues, 74 Yale L. J.
1245, 1255 (1965); alteration omitted)).
8               AXON ENTERPRISE, INC. v. FTC

                     THOMAS, J., concurring

facts”). And, it may violate due process by empowering en-
tities that are not courts of competent jurisdiction to de-
prive citizens of core private rights. See B&B Hardware,

 (THOMAS, J., dissenting) (“[H]owever
broadly ‘court of competent jurisdiction’ was defined, it
would require quite a leap to say that the concept encom-
passes 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
outside courts and their processes”). Finally, the appellate
review 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, 

 (1987) (explaining that the Sev-
enth Amendment ensures the right to a jury trial for all ad-
judications “analogous to ‘Suits at common law’ ”).
    It is no answer that an Article III court may eventually
review the agency order and its factual findings under a
deferential standard of review. In fact, there seems to be
no basis for treating factfinding differently from deciding
questions of law. Both are at the core of judicial power, as
Article 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, 

 (2011).
For much of the Nation’s history, it was understood that
Article III precluded “the political branches” from exercis-
ing “power over the determination of individualized adjudi-
cative facts when core private rights were at stake.” Nelson
593 (emphasis deleted); see also Hamburger 297. It is ob-
vious that Article III “would not be satisfied if Congress pro-
vided for judicial review but ordered the courts to affirm the
agency no matter what.” G. Lawson, The Rise and Rise of
the Administrative State, 

, 1247
(1994) (Lawson). And, “[t]here is no reason to think that it
is any different if Congress instead simply orders courts to
                  Cite as: 

 (2023)             9

                     THOMAS, J., concurring

put a thumb (or perhaps two forearms) on the agency’s side
of the scale.” 

 at 1247–1248. Such a regime “allows a
mere party to supplant a jury as the court’s fact finder,”
Hamburger 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 depriving individuals of vested property rights, they
must not serve even as fact-finders subject to judicial defer-
ence.” 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 Con-
stitution 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 pri-
vate rights that must be adjudicated by Article III courts.
For one, Axon and Cochran face the threat of significant
monetary fines. Indeed, in the first round of proceedings,
the SEC imposed a $22,500 civil penalty on Cochran. And,
the FTC seeks to require Axon to transfer intellectual prop-
erty to another entity. These types of penalties and orders
implicate the core private right to property. See Lawson
1247 (“imposition of a civil penalty or fine” implicates core
Article III power); see also Nelson 626–627. Accordingly,
they likely must be adjudicated by Article III courts and ju-
ries. See Tull, 

 (“A civil penalty was a type
of remedy at common law that could only be enforced in
courts of law”); accord, 

 at 427–428 (Scalia, J., concur-
ring in part and dissenting in part). Naturally, merely la-
beling the deprivation of a core private right a “civil pen-
alty” cannot allow Congress and agencies to circumvent
constitutional requirements. Cf. Granfinanciera, S. A. v.
10              AXON ENTERPRISE, INC. v. FTC

                     THOMAS, J., concurring

Nordberg, 

 (1989) (“Congress cannot elimi-
nate 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 ad-
ministrative agencies to adjudicate what may be core pri-
vate rights, the administrative 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.
                  Cite as: 

 (2023)            1

               GORSUCH, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
                          _________________

                    Nos. 21–86 and 21–1239
                          _________________


        AXON ENTERPRISE, INC., PETITIONER
21–86                 v.
        FEDERAL TRADE COMMISSION, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT



 SECURITIES AND EXCHANGE COMMISSION, ET AL.,
                PETITIONERS
21–1239              v.
             MICHELLE COCHRAN
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                         [April 14, 2023]

  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
Basin factors.” Ante, at 8. Instead, it follows directly from

.
                                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, 

 (1850). Exer-
cising that power, for the last 150 years Congress has af-
forded lower federal courts jurisdiction to hear civil dis-
putes arising under the Constitution or laws of the United
States. Act of Mar. 3, 1875, ch. 137, §1, 

; see
also Act of Dec. 1, 1980, 

 (eliminating amount-
2               AXON ENTERPRISE, INC. v. FTC

                GORSUCH, J., concurring in judgment

in-controversy requirement). Today, §1331 provides that
“district courts shall have original jurisdiction of all civil ac-
tions arising under the Constitution, laws, or treaties of the
United States.” Not may have jurisdiction, but shall. Not
some civil actions arising under federal law, but all. The
statute is as clear as statutes get, and everyone agrees it
encompasses the claims Ms. Cochran and Axon seek to pur-
sue. See ante, at 7. 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, 

(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 7. 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 in-
stead—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 pro-
ject, but start with its sheer incoherence. At the outset,
Thunder Basin requires litigants and courts to ask whether
a “ ‘comprehensive review process’ ” exists. Ante, at 7. What
does that mean? It seems a review process will “typically”
qualify as “comprehensive” when “review in a court of ap-
peals follow[s] the agency’s own review.” 

 But “typi-
cally” does not mean “necessarily.” 

 Just because an
agency can hear a case does not mean a district court can-
not. 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.” Ante, at 7–8.
                  Cite as: 

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               GORSUCH, J., concurring in judgment

   That’s where the magic happens. The Thunder Basin fac-
tors require assessing whether: (1) “precluding district
court jurisdiction” would “foreclose all meaningful judicial
review”; (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 8 (internal quotation
marks omitted); see generally 510 U. S., at 207–215. Har-
nessing 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 8–10.
   Just see how easy it is. To apply the first 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 analo-
gous the plaintiff ’s plea for immediate review is to a gov-
ernmental official’s plea for qualified immunity. Ante,
at 12–14. If this is starting to seem more confounding than
clarifying, do not worry. The first factor is the “least
straightforward” anyway. Ante, at 11. When it comes to
the second factor, you only need to evaluate the “collateral-
ism” of the plaintiff ’s claim. Ante, at 14. Apparently, that
“requires considering the nature of the claim, not the status
(pending or not) of an agency proceeding.” Ante, at 16. The
third factor is just one easy question too, focused on
whether the plaintiff ’s claim is “intertwined with or embed-
ded in matters on which the [agency is] expert.” Ante, at 17.
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 8.
   Even after you make it through these twists and turns, a
final 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 17–18.
4                  AXON ENTERPRISE, INC. v. FTC

                  GORSUCH, J., concurring in judgment

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 “in-
ten[tions]” to divest district courts of jurisdiction in favor of
certain agency proceedings. Ante, at 7 (internal quotation
marks omitted). But what gives courts authority to
engage in this business of jurisdiction-stripping-by-
implication?
   The answer, of course, is nothing. Under our Constitu-
tion, “Congress, and not the Judiciary, defines the scope of
federal jurisdiction.” New Orleans Public Service, Inc. v.
Council of City of New Orleans, 

 (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, 

 (1821)
(Marshall, C. J., for the Court). That is why we have called
it the “true rule” that “statutes clearly defining the jurisdic-
tion of the courts . . . must control . . . in the absence of sub-
sequent legislation equally express.” Rosencrans v. United
States, 

 (1897). And why we have said
that “jurisdiction conferred by 

,” in partic-
ular, “should hold firm against mere implication[s]” from
other laws. Mims v. Arrow Financial Services, LLC, 

 (2012) (internal quotation marks omitted).
   Thunder Basin defies these foundational rules. Maybe
——————
    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 . . .”).
                     Cite as: 

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                  GORSUCH, J., concurring in judgment

worse, it exhibits familiarity with none of them. No one
disputes that §1331 represents a valid exercise of Con-
gress’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 statute Congress has adopted that speaks otherwise.
Under the law, that should be the end of the matter. But
under Thunder Basin, courts may refuse individuals their
right to a judicial forum based on nothing more than sup-
positions about “implici[t]” congressional “inten[tions].”
Ante, at 7. 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 jurisdic-
tion 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 im-
plicit intentions of legislators past. It simply tells us. See,
e.g., 

(i)(1) (“[E]xcept as otherwise provided
in this section or under section 1831o or 1831p–1 of this ti-
tle no court shall have jurisdiction to affect by injunction or
otherwise the issuance or enforcement of any notice or order
under any such section”); 

(h) (“No action
against the United States, the Commissioner of Social Se-
curity, or any officer or employee thereof shall be brought
under section 1331 or 1346 of title 28 to recover on any
claim arising under this subchapter”). 2
——————
  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
6                  AXON ENTERPRISE, INC. v. FTC

                  GORSUCH, J., concurring in judgment

                              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, 

(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 can-
didates. But the government’s arguments from those laws
are so improbable that the Court barely mentions them. I
pause to walk through each only to illustrate how these
cases should have been resolved.
   In Ms. Cochran’s case, the government directs our atten-
tion to §78y(a)(1) of the Exchange Act. That provision says
that “[a] person aggrieved by a final order of the Commis-
sion . . . may obtain review of the order in the United States
Court of Appeals . . . by filing in such court . . . a written
petition requesting that the order be modified or set aside
in whole or in part.” 15 U. S. C. §78y(a)(1). Plainly, the
statute promises jurisdiction in a court of appeals for those
——————
agency invokes Thunder Basin and regardless of whether the agency it-
self may prefer to proceed in court. See Wilkins v. United States, 

, ___ (2023) (slip op., at 4) (“courts have a duty to consider [ju-
risdictional 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 can-
dor, however, would not rescue the contrivance. As this Court has rec-
ognized, we possess no more authority to “impos[e] extra-statutory limi-
tations” on the “capacity to sue” than we do to impose extra-statutory
limitations on the jurisdiction of the lower federal courts. Ross v. Blake,

 (2016); see Jones v. Bock, 

(2007) (“crafting and imposing” exhaustion rules “not required by” stat-
ute “exceeds the proper limits on the judicial role”).
                  Cite as: 

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               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 al-
leges 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, 

, ___
(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 eq-
uity.” §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, 

 (1967). And, of course,
one traditional avenue of relief is a suit in district court un-
der §1331 seeking to enjoin unconstitutional conduct. See
Free Enterprise Fund v. Public Company Accounting Over-
sight Bd., 

, 491, n. 2 (2010). Far from barring
Ms. Cochran’s path to court, then, the Exchange Act ex-
pressly preserves it.
   The story repeats itself when it comes to Axon. The gov-
ernment 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 sub-
ject to “an order of the Commission to cease and desist from
using any method of competition or act or practice may ob-
tain a review of such order in the court of appeals of the
United States.” 

(c). And, here again, we
have nothing like that. The FTC has not ordered Axon to
8                  AXON ENTERPRISE, INC. v. FTC

                  GORSUCH, J., concurring in judgment

cease and desist from anything. That §5(c) does not fore-
close Axon’s case finds reinforcement next door too. Section
5(d) holds that, “[u]pon the filing of the record . . . the juris-
diction of the court of appeals of the United States to affirm,
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.
Cochran’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 statutory language is clear, our sole function . . . is to
enforce it according to its terms.” Rake v. Wade, 

 (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.”

. 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 defined term, one
that embraces “the whole or a part of an agency rule, order, license, sanc-
tion, relief, or the equivalent or denial thereof, or failure to act.”

(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 specified by statute.”
§703. But as we have seen, Ms. Cochran and Axon do not seek judicial
review of an SEC final order or an FTC cease-and-desist order—and both
                     Cite as: 

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                 GORSUCH, J., concurring in judgment

                              IV
   While 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, 

, ___ (2017) (slip op., at 8);
see also Sisson v. Ruby, 

 (1990); Fore-
most Ins. Co. v. Richardson, 

, 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, 

 (2010). For courts, jurisdictional rules “mark the
bounds” of their “ ‘adjudicatory authority.’ ” Boechler v.
Commissioner, 

, ___ (2022) (slip op., at 2).
Judges therefore “benefit from straightforward rules under
which they can readily assure themselves of their power to
hear a case,” Hertz, 

, while “adventitious”
rules leave them with “almost impossible” tasks to perform
that squander their limited resources, Executive Jet Avia-
tion, Inc. v. Cleveland, 

 (1972).
   There are many words to describe the Thunder Basin fac-
tors, but “clear and easy to apply” are not among them. To
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 find their way into the
Court’s opinion.
   A single mother of two and a certified public accountant,
Ms. Cochran began looking for part-time work in 2007.
——————
the Exchange Act and the FTC Act preserve their right to proceed in dis-
trict court to address the here-and-now injuries they assert.
10             AXON ENTERPRISE, INC. v. FTC

               GORSUCH, J., concurring in judgment

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 firm’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 firm. 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 Secu-
rities 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 Release No. 3–17228,
p. 1 (2017). In English, the SEC alleged that Ms. Cochran
had failed to complete auditing checklists, leaving certain
sections of certain forms “blank.” 

 at 12–13. The agency
brought these charges even though there was “no evidence”
that the incomplete paperwork had resulted in any “mone-
tary 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 officers (an “administrative law judge” or “ALJ”).
Reportedly, that ALJ made a practice of warning defend-
ants during settlement discussions that he had “never ruled
against the agency’s enforcement division.” J. Eaglesham,
SEC Judges’ Fairness Is in Spotlight, Wall St. J., Nov. 23,
2015, p. C6. It seems, though, Ms. Cochran didn’t take the
hint. She refused 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
                  Cite as: 

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               GORSUCH, J., concurring in judgment

case and then turned about to testify against Ms. Cochran.
In the end, the ALJ fined Ms. Cochran $22,500 and banned
her from practicing before the SEC as an accountant for at
least five 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, 

, ___ (2018) (slip.
op., at 2). Ms. Cochran might have thought that would
bring her own case to a close. But the SEC chose instead to
take a mulligan. 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 administrative 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 pro-
ceedings on the ground that all of its ALJs are unconstitu-
tionally insulated from presidential supervision, pointing to
this Court’s decisions in Lucia and Free Enterprise Fund.
Lucia held that SEC ALJs are inferior officers under the
Constitution’s Appointments Clause. 585 U. S., at ___ (slip
op., at 8). And Free Enterprise Fund held that the President
must retain adequate authority to supervise and even re-
move such officers. 561 U. S., at 492.
   In 2019, the district court dismissed Ms. Cochran’s suit
without reaching its merits. 

 (ND Tex.,
Mar. 25, 2019). The court did so because it thought Thun-
der Basin required that result. 

. A year and a half
later, a panel of the Fifth Circuit ran through the Thunder
Basin factors and affirmed. 

 (2020). A year
and a half after that, the en banc Fifth Circuit took another
look and largely reversed. 

 (2021). Now, more
than four years after Ms. Cochran filed her complaint, this
Court balances the Thunder Basin factors anew and holds
that her case belonged in district court all along. Ante, at
12             AXON ENTERPRISE, INC. v. FTC

               GORSUCH, J., concurring in judgment

17–18. For its part, Axon has endured a similarly tortuous
path. Over the course of three years, the district court dis-
missed its case, 

 (Ariz. 2020), and the
court of appeals affirmed, 

 (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 figuring
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 re-
quired 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,
prosecutor, and judge under one roof. They employ relaxed
rules of procedure and evidence—rules they make for them-
selves. The numbers reveal just how tilted this game is.
From 2010 to 2015, the SEC won 90% of its contested in-
house proceedings compared to 69% of the cases it brought
in federal court. See G. Mark, Response: SEC Enforcement
Discretion, 94 Texas L. Rev. 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
                     Cite as: 

 (2023)                   13

                 GORSUCH, J., concurring in judgment

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 eventu-
ally makes its way to an appellate court, judges sometimes
defer to the agency’s conclusions (especially when it comes
to disputed questions of fact). And how many people can
afford to carry a case that far anyway? Ms. Cochran’s ad-
ministrative proceedings have already dragged on for seven
years. Thanks in part to these realities, the bulk of agency
cases settle. See Tilton v. SEC, 

(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 outlast 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 unclear jurisdictional test, Thunder Basin car-
ries 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 determination of every” case, Fed. Rule Civ.
Proc. 1.
                              *
   When Congress withholds jurisdiction, we must respect
its choice. But when Congress grants jurisdiction to the
Nation’s courts, we must respect that choice too. We have
no authority to froth plain statutory text with factors of our
——————
   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 et al. eds. 2013) (“Consent
decrees create potential for an enforcement agency to extract from par-
ties under investigation commitments well beyond what the agency could
obtain in litigation”).
14            AXON ENTERPRISE, INC. v. FTC

              GORSUCH, J., concurring in judgment

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.