On June 2, 2025, the Supreme Court denied a petition for writ of certiorari filed by Alpine Securities Corporation challenging a D.C. Circuit ruling granting only limited, preliminary relief to Alpine. Alpine argued that FINRA's structure and exercise of its enforcement authority violated, among other things, the Appointments Clause and private non-delegation doctrine. Given recent Supreme Court cases curbing agency powers, it appeared that the Supreme Court might grant certiorari, limit FINRA's enforcement power, and alter its structure. The Supreme Court's denial of certiorari leaves FINRA's structure intact for now, but also leaves open the possibility of future challenges.
Prior Proceedings
Before the case reached the Supreme Court, Alpine Securities v. FINRA had already invited significant scrutiny of FINRA's authority. In 2019, FINRA disciplined Alpine—a broker-dealer—for charging what FINRA deemed excessive fees and misappropriating customer assets, in violation of FINRA's rules. Alpine responded with a lawsuit challenging FINRA's constitutionality.
While litigation was pending, FINRA initiated an expedited proceeding to expel Alpine for allegedly violating the prior cease-and-desist order. Alpine sought a preliminary injunction blocking enforcement proceedings, arguing that it faced catastrophic harm if FINRA, an "illegitimate actor," expelled it. Alpine argued that, as a private actor, FINRA could not enforce federal laws. Alpine also contended that even if FINRA were a public actor entitled to enforce the law, its members were not properly appointed. Because FINRA's structure and powers are illegal, Alpine continued, Alpine should not have to suffer through continued enforcement procedures.
After the district court refused to grant a preliminary injunction, the D.C. Circuit reversed, granting limited relief.[1] The D.C. Circuit largely sidestepped the core constitutional arguments and concluded that Alpine had shown it would likely succeed on its argument that FINRA cannot expel a member without any SEC review of that decision. However, the court refused to enjoin the enforcement proceeding, finding that being subjected to an enforcement action by an allegedly illegitimate actor does constitute irreparable injury.
Recent Supreme Court Cases Curbing Agency Authority
In a slew of recent decisions, the Supreme Court has curbed agency authority and powers. Last year, the Supreme Court decided two major cases curbing the authority of administrative agencies. In Loper Bright Enterprises v. Raimondo, the Supreme Court held that federal courts will no longer defer to "reasonable" agency interpretations of ambiguous statutes when deciding whether agency regulations are valid, overruling 40-year-old precedent.[2] In SEC v. Jarkesy, the Supreme Court held that, under the Seventh Amendment, the SEC cannot impose civil fines for securities fraud without allowing defendants an opportunity for a jury trial.[3]
This year, the Supreme Court signaled it is not done limiting the powers of administrative agencies. In Trump v. Wilcox, the Supreme Court stayed a D.C. Circuit decision blocking the president's removal of a member of the National Labor Relations Board (NLRB).[4] According to the statute governing the NLRB, its members can only be removed for "neglect of duty or malfeasance in office, but for no other cause." While this decision was not final, the Supreme Court noted that its grant of preliminary relief "reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power." In other words, it may well be true that agency officials may be protected from removal, or exercise executive authority, but not both.
Some expected the Supreme Court to take another step in curbing regulatory authority in Alpine Securities v. FINRA—albeit as to FINRA, which is a "quasi-governmental" entity, a self-regulatory organization that regulates broker-dealers. FINRA's actions, including its enforcement actions, can have immediate, industry-wide consequences—expelling a member firm from FINRA effectively bars it from participating in the U.S. securities markets.
The Court's Declination and Potential Impact on Regulated Firms
In its petition to the Supreme Court, Alpine argued that it would suffer irreparable injury by being subjected to an unconstitutional proceeding. In addition, Alpine argued that FINRA's structure is constitutionally questionable because it is not subject to constitutional guardrails, like the Appointments Clause and presidential removal power. DOJ submitted a brief opposing Alpine's cert request and argued, as to the constitutional challenge, that Alpine's case at this stage of the proceeding is an "especially poor vehicle for review" because Alpine obtained relief on its private-nondelegation argument.
The DOJ's cautionary approach seems to have persuaded the justices. The Supreme Court's declination to grant Alpine's petition leaves FINRA's structure intact, at least for now. FINRA may not expel Alpine without SEC review. The case will now return to the district court, where Alpine's constitutional challenges, including arguments under the Appointments Clause, remain pending.
The Supreme Court's denial of cert in Alpine does not mean the end of judicial scrutiny of SROs, other agencies, or federal financial regulation generally. The Court may simply have agreed with DOJ's argument that the issue presented in Alpine was not the right "vehicle" for the Court to review questions of great consequence for presidential authority. The procedural posture—appealing a preliminary injunction—left much undecided. FINRA is also something of a constitutional anomaly: a private corporation performing a public function under federal supervision.
These developments send a signal: at least in some circumstances, FINRA's actions must be subject to meaningful government oversight. That has practical implications for compliance, but also for litigation strategy. However, FINRA is likely here to stay for the foreseeable future. Alpine's case makes clear the risks of going all in on a favorable court ruling concerning the fundamental power of a prosecuting agency. Alpine may continue to try for more in the district court, but it will be barred from doing business if the SEC agrees with FINRA.
[1] Alpine Sec. Corp. v. Fin. Indus. Regul. Auth., 121 F.4th 1314 (D.C. Cir. 2024).
[2] Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
[3] SEC v. Jarkesy, 603 U.S. 109 (2024).
[4] Trump v. Wilcox, 145 S. Ct. 1415 (2025).