An opinion was released in case 23-5129, Alpine Securities Corporation v. Financial Industry Regulatory Authority, Inc.

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 8, 2024           Decided November 22, 2024

                        No. 23-5129

             ALPINE SECURITIES CORPORATION,
                       APPELLANT

                             v.

FINANCIAL INDUSTRY REGULATORY AUTHORITY AND UNITED
                 STATES OF AMERICA,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:23-cv-01506)


     Brian W. Barnes argued the cause for appellant. With him
on the briefs were Maranda E. Fritz, David H. Thompson, and
Athanasia O. Livas.

    William P. Barr, Noel J. Francisco, Brian C. Rabbitt, and
Anthony J. Dick were on the brief for amicus curiae American
Free Enterprise Chamber of Commerce in support of appellant.

    Russell G. Ryan and Andrew Morris were on the brief for
amicus curiae New Civil Liberties Alliance in support of
appellant.
                              2
    Carrie Devorah, pro se, was on the brief for amicus curiae
Carrie Devorah in support of appellant.

    Amir C. Tayrani argued the cause for appellee Financial
Industry Regulatory Authority. With him on the brief were
Alex Gesch and Max E. Schulman.

    Joseph F. Busa, Attorney, U.S. Department of Justice,
argued the cause for intervenor appellee United States. With
him on the brief were Brian M. Boynton, Principal Deputy
Assistant Attorney General, and Mark B. Stern and Courtney
Dixon, Attorneys. Gerard J. Sinzdak, Attorney, entered an
appearance.

    Zachary Knepper was on the brief for amicus curiae North
American Securities Administrators Association, Inc. in
support of appellees.

    Alan L. Rosca was on the brief for amicus curiae Public
Investor Advocate Bar Association in support of appellee.

    Adam G. Unikowsky, Elizabeth B. Deutsch, and Arjun R.
Ramamurti were on the brief for amici curiae National Futures
Association, et al. in support of appellee.

    David S. Flugman was on the brief for amicus curiae
Benjamin P. Edwards in support of appellee.

    Adam L. Deming, Mark D. Harris, and Margaret A. Dale
were on the brief for amici curiae the Depository Trust
Company, et al. in support of appellees.

    Kevin King and Daniel G. Randolph were on the brief for
amicus curiae Securities Exchanges in support of appellee.
                               3
     Pratik A. Shah and Lide E. Paterno were on the brief for
amicus curiae Horseracing Integrity and Safety Authority, Inc.
in support of appellee.

     Jonathan E. Barbee and Robert K. Kry were on the brief
for amicus curiae Municipal Securities Rulemaking Board in
support of neither party.

    Before: SRINIVASAN, Chief Judge, MILLETT and WALKER,
Circuit Judges.

    Opinion for the Court filed by Circuit Judge MILLETT.

     Opinion concurring in the judgment in part and dissenting
in part filed by Circuit Judge WALKER.

     MILLETT, Circuit Judge: The United States securities
industry is regulated by both private entities and the federal
government. These private regulators, referred to as self-
regulatory organizations, date back centuries to when groups
of securities traders adopted self-governing rules by which they
would conduct business and ensure public trust in their
operations.

     Today, a private corporation, the Financial Industry
Regulatory Authority (“FINRA”), regulates and oversees large
parts of the securities industry. Congress, however, has
overlain federal law on those private self-regulatory practices.
As relevant here, federal law effectively requires most firms
and individuals that trade securities to join FINRA as a
condition of engaging in that business. Federal law, in turn,
subjects FINRA to oversight by the Securities and Exchange
Commission (“SEC”) and requires that FINRA ensure that its
members comply both with FINRA’s own rules and with
federal securities laws.
                               4
    In 2022, FINRA sanctioned one of its members, Alpine
Securities Corporation, for violating FINRA’s private rules for
member behavior and imposed a cease-and-desist order against
Alpine. Alpine then sued in federal court, challenging
FINRA’s constitutionality.

     While that lawsuit was pending, FINRA concluded that
Alpine had violated the cease-and-desist order and initiated an
expedited proceeding to expel Alpine from membership in
FINRA. Alpine then sought a preliminary injunction from the
district court against the expedited proceeding, arguing that
FINRA is unconstitutional because its expedited action against
Alpine violates either the private nondelegation doctrine or the
Appointments Clause.          The district court denied the
preliminary injunction.

     We now reverse only to the extent the district court
allowed FINRA to expel Alpine with no opportunity for SEC
review. Alpine is entitled to that limited preliminary injunction
because it has demonstrated that it faces irreparable harm if
expelled from FINRA and the entire securities industry before
the SEC reviews the merits of FINRA’s decision. Alpine has
also demonstrated a likelihood of success on its argument that
the lack of governmental review prior to expulsion violates the
private nondelegation doctrine. We accordingly hold that
FINRA may not expel Alpine either before Alpine has obtained
full review by the SEC of the merits of any expulsion decision
or before the period for Alpine to seek such review has elapsed.

     At the same time, we hold that Alpine has not
demonstrated that it will suffer irreparable harm from
participating in the expedited proceeding itself as long as
FINRA cannot expel Alpine until after the SEC conducts its
own review. For that reason, Alpine has not shown that it is
                               5
entitled to a preliminary injunction halting that proceeding
altogether.

     As this case comes to us in a preliminary-injunction
posture, we necessarily do not resolve the ultimate merits of
any of Alpine’s constitutional challenges, and our
determination about Alpine’s likelihood of success on the
private nondelegation issue is based only on the early record in
this case. We leave it to the district court on remand to
determine the ultimate merits of Alpine’s claims.

                               I

                               A

     By way of background, the securities industry in the
United States has engaged in extensive self-regulation for more
than two centuries. Efforts to create organized, self-policing
stock markets in the United States began in the late eighteenth
century. See Stuart Banner, The Origin of the New York Stock
Exchange, 1791–1860, 27 J. LEGAL STUD. 113, 114–115
(1998). The earliest effort came in 1791, when securities
traders in New York agreed to abide by fourteen rules. Id. at
114. Those rules created auction procedures, required
employment of a stockbroker, and developed a means for
enforcing sales contracts. Id. at 114–115. Participants to the
agreement who violated the rules would be barred from future
transactions with other participants. Id. at 115. After the stock
market crashed in 1792, these fourteen rules were succeeded
by the well-known 1792 Buttonwood Agreement, in which a
group of New York traders agreed, among other things, to
regulate stock trade commissions. Id. As the story goes, the
traders signed that agreement in the shade of a buttonwood
tree—though that part of the story may be apocryphal. See id.
at 115 n.3.
                               6
     Following the War of 1812, New York securities brokers,
sensing an opportunity to make money trading in federal debt
securities, organized themselves into the New York Stock and
Exchange Board, known today as the New York Stock
Exchange. Banner, supra, at 115. Their first constitution set
minimum commissions on trades, imposed rules for trading,
and set membership criteria. See Constitution of the New York
Stock & Exchange Board (1817), https://perma.cc/E5WA-
FHR6. The constitution also provided that a member who
refused to comply with its rules could have a hearing before the
Board and could be expelled if it continued to violate the rules.
Id. § 15. Traders in other cities soon followed suit, forming the
Boston and Philadelphia stock exchanges by 1835. Banner,
supra, at 116.

     These exchanges functioned as private regulators in the
early American securities industry. The New York Stock and
Exchange Board took on an outsized role as the foremost stock
exchange in the country. Banner, supra, at 119. Among other
things, it adopted membership criteria, promulgated rules with
which members had to comply, and developed a quasi-judicial
system that employed panels of exchange members for
adjudicating disputes. Id. at 120–126, 132–133. Members who
violated the exchange’s rules, such as by breaching sales
contracts, could be suspended or expelled from the exchange
and barred from doing business with its members. Id. at 122.
In this way, the exchange both facilitated securities trading and
promoted an image of trustworthiness and credibility to the
public. Id. at 123, 140. This entire self-regulatory scheme was
private, with the exchange funded through membership fees.
Id. at 116.
                              7
                              B

     For the next century, the securities industry remained
largely autonomous. Then, after the catastrophic 1929 stock
market crash and the ensuing Great Depression, Congress
passed a series of laws regulating the securities industry,
including the Securities Exchange Act of 1934, Pub. L. No. 73–
291, 

 (codified as amended at 15 U.S.C. § 78a et
seq.) (“Exchange Act”). The Exchange Act created the
Securities and Exchange Commission, a federal agency tasked
with overseeing and regulating the securities industry.
Exchange Act § 4, 48 Stat. at 885. In addition to direct
rulemaking authority, Congress gave the SEC a supervisory
role over private exchanges and required them to register with
the SEC and to comply with the SEC’s orders. Exchange Act
§§ 6, 19, 48 Stat. at 885–886, 898–899; see Marianne K.
Smythe, Government Supervised Self-Regulation in the
Securities Industry and the Antitrust Laws, 62 N.C. L. REV.
475, 482–483 (1984).

    Congress later realized that the SEC was underequipped to
regulate securities trading that was taking place off the
exchanges through informal networks of securities traders. See
Smythe, supra, at 483. To address that problem, Congress
passed the Maloney Act of 1938, Pub. L. No. 75–719, 

 (1938) (codified as amended in scattered sections of 15
U.S.C.). Rather than expand the SEC, Congress took what it
saw as a “distinctly preferable” route: Creating a system of
“cooperative regulation,” in which the task of regulating
securities traders would “be largely performed by
representative organizations of investment bankers, dealers,
and brokers[.]” S. REP. NO. 75–1455, at 4 (1938). The SEC
would take on a supervisory role by “exercising appropriate
supervision in the public interest, and exercising
supplementary powers of direct regulation.” 

 As Justice
                               8
Douglas put it while chair of the SEC, the self-regulatory
model of securities regulation permits private entities to “take
the leadership with Government playing a residual role.”
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 

 (1973) (quoting WILLIAM O. DOUGLAS, DEMOCRACY
AND FINANCE 82 (J. Allen ed. 1940)).

     To achieve its goal of “cooperative regulation,” the
Maloney Act established “registered securities associations”—
self-regulatory organizations registered with the SEC that are
composed of brokers and dealers. See 15 U.S.C. § 78o-3.
These organizations are required to adopt rules for their
members to follow and to enforce both their own rules and
federal securities laws against their members. See id. § 78o-
3(b).

     In 1939, the National Association of Securities Dealers
(“NASD”) became the nation’s first registered securities
association. Smythe, supra, at 477–478, 483–485. NASD’s
initial rules required its members to “observe high standards of
commercial honor and just and equitable principles of trade,”
and prohibited members from “mak[ing] improper use of a
customer’s securities or funds.” Paul S. Grant, The National
Association of Securities Dealers: Its Origin and Operation,
1942 WIS. L. REV. 597, 602–603 (1942). NASD also regulated
the commissions that its members could charge, generally
deeming commissions above five percent to be unreasonable.
In the Matter of the Rules of the Nat’l Ass’n of Sec. Dealers,
Inc., Exchange Act Release No. 3574, 

, at *1
(S.E.C. June 1, 1944).

     Since 1938, Congress has repeatedly amended the
Exchange Act to bolster the self-regulatory scheme by
increasing government oversight while preserving self-
regulatory organizations’ primary role in regulating the
                               9
securities industry. See S. REP. NO. 94–75, at 22 (1975) (noting
“the sheer ineffectiveness of attempting to assure [regulation]
directly through the government on a wide scale”). The most
significant of these amendments came in 1975 and 1983.

    In 1975, “Congress initiated a major overhaul of the
Exchange Act and drastically shifted the balance of rulemaking
power in favor of Commission oversight.” Credit Suisse First
Boston Corp. v. Grunwald, 

 (9th Cir.
2005).     The 1975 amendments require self-regulatory
organizations to submit rule changes to the SEC for approval
before they can go into effect. 

; see 15 U.S.C.
§ 78s(b)(1). The SEC may also “abrogate, add to, and delete
from” self-regulatory organizations’ rules. 15 U.S.C. § 78s(c).

     Then, in 1983, Congress made joining a self-regulatory
organization mandatory for virtually all securities traders. Pub.
L. No. 98–38, § 3, 

 (1983). The SEC, however,
retains the authority to exempt individual traders from that
membership requirement. 15 U.S.C. § 78o(b)(9).

                               C

    Today, FINRA is the only registered securities association
in the United States. FINRA was formed after the SEC
approved a merger between NASD and the New York Stock
Exchange’s enforcement arm. 

, 42,169
(Aug. 1, 2007). FINRA is organized as a Delaware nonprofit
corporation operated by private individuals and receives no
funding from the federal government. Like early self-
regulatory organizations, FINRA is financed entirely through
“fees, fines, penalties, and sanctions levied against its
members.” Second Am. Compl. ¶¶ 41, 52–53.

     As required by federal law, FINRA promulgates rules for
its members to follow. Some of FINRA’s rules are almost
                              10
word-for-word identical to NASD rules from the 1930s and
1940s. For example, FINRA, like the NASD in 1939, requires
members to “observe high standards of commercial honor and
just and equitable principles of trade.” FINRA Rule 2010; see
NASD Rule 1 (“A member * * * shall observe high standards
of commercial honor and just and equitable principles of
trade.”), reprinted in Grant, supra, at 602. FINRA’s rules also
carry forward NASD’s prohibition on members “mak[ing]
improper use of a customer’s securities or funds.” FINRA Rule
2150(a); see NASD Rule 19(a) (“No member shall make
improper use of a customer’s securities or funds.”), reprinted
in Grant, supra, at 603 n.3. In addition, FINRA continues to
use NASD’s five-percent policy, which generally considers
commissions greater than five percent to be unreasonable. See
FINRA Rule 2121; FINRA Rule 2121 Supplementary Material
.01 (“The [Five-Percent] Policy has been reviewed by the
Board of Governors on numerous occasions and each time the
Board has reaffirmed the philosophy expressed in 1943.”).

     Under the Exchange Act, FINRA must enforce its rules
against its members and “provide a fair procedure for”
disciplining members who violate FINRA rules. 15 U.S.C.
§§ 78o-3(b)(2), (7)–(8). FINRA must also ensure that
members comply with the Exchange Act and SEC rules and
regulations. Id.

     Typical FINRA enforcement actions take place before an
internal FINRA panel and may involve multiple levels of
review. See Saad v. SEC, 

 (D.C. Cir. 2017).
FINRA members may appeal to a FINRA appellate body, the
decisions of which may also be reviewed by the FINRA Board.

 Final FINRA decisions may be appealed to the SEC, which
generally performs “its own review of the disciplinary action,”
and may modify, affirm, or set aside any part of FINRA’s
decision. Id.; 15 U.S.C. § 78s(e)(1). Finally, FINRA members
                               11
can petition a court of appeals for review of an adverse SEC
decision. 15 U.S.C. § 78y(a)(1).

     FINRA rules separately provide for expedited disciplinary
proceedings for certain types of misconduct, including
violating a previously issued FINRA order. See FINRA Rules
9556, 9559.        These expedited proceedings have more
compressed timelines and generally involve less internal
review. See FINRA Rule 9559(f)(2) (requiring a hearing
within ten days after a member is served notice). Appellate
review of expedited proceedings within FINRA is
discretionary. See FINRA Rule 9559(q). Violators may still
appeal to the SEC from the final FINRA decision, but “[t]he
filing of an application for review by the SEC shall not stay the
effectiveness of final FINRA action, unless the SEC otherwise
orders.” FINRA Rule 9559(r).

                               II

                                A

     Alpine Securities Corporation is a securities broker-dealer,
meaning that it trades securities on behalf of others and for
itself. See 15 U.S.C. § 78c(a)(4)–(5). Alpine is a member of
FINRA.

    In 2018, Alpine’s finances took a turn for the worse.
Alpine attributed its financial troubles in part to an earlier SEC
enforcement action against Alpine for violation of federal
securities laws that culminated in a $12 million civil penalty
against Alpine for “egregious * * * [and] illegal conduct on a
massive scale.” See SEC v. Alpine Sec. Corp., 

, 245 (S.D.N.Y. 2019), aff’d, 

 (2d Cir. 2020).
To stem its losses, Alpine adopted a new business model,
ending individual retail investment services and imposing
significantly higher fees.
                              12
     Alpine’s revamped business model attracted scrutiny from
FINRA. After Alpine customers complained to FINRA about
the firm’s fees, FINRA opened an investigation and then
charged Alpine by complaint in August 2019. App. 164. A
FINRA disciplinary panel concluded that Alpine had violated
a litany of FINRA rules. The panel found that Alpine’s new
fees—including a $5,000 monthly account fee that was a 600-
fold increase from Alpine’s prior $100 annual account fee—
were unreasonable. App. 192, 195. The panel also found that
Alpine had charged several types of fees that, when combined,
“resulted in unfair and excessive prices and commissions” that
were “well in excess of 5%, and in many instances well in
excess of 10% per trade.” App. 219–221. In addition, the panel
found that Alpine misappropriated customer property by
seizing customer-owned securities, App. 201, 206, and violated
liquidity rules when it made an unauthorized withdrawal of
over $600,000 from Alpine’s funds to pay an unprecedentedly
large “bill” owed to an Alpine affiliate, App. 226, 228.
FINRA’s findings involved violations only of FINRA’s own
internal rules; FINRA did not find that Alpine had violated
federal securities laws or regulations.

     Deeming Alpine’s misconduct “intentional and
egregious,” the FINRA panel expelled Alpine from FINRA,
issued a cease-and-desist order prohibiting Alpine from
charging the fees and commissions the panel had held were
unreasonable, and ordered it to pay restitution to injured
customers. App. 240, 243, 246–248. Alpine appealed to
FINRA’s internal appellate body, which automatically stayed
the expulsion order. FINRA Br. 13; see FINRA Rule 9311(b).
That appeal is still pending before FINRA.

    Alpine’s appeal within FINRA did not stay the cease-and-
desist order against it because that order became final when the
panel issued it. FINRA Br. 13–14; see FINRA Rule 9311(b).
                               13
Alpine could have appealed that order to the SEC, FINRA
Rules 9370, 9870, but chose not to and so that order went into
and remains in effect.

                               B

     Alpine and an affiliate business subsequently sued FINRA
in the United States District Court for the Middle District of
Florida, challenging FINRA’s constitutionality. Alpine raised
challenges under the private nondelegation doctrine,
Appointments Clause, First Amendment, Fifth Amendment,
and Seventh Amendment. The United States intervened to
defend the constitutionality of the relevant parts of federal
securities law, such as the general requirement that a trader be
a member of a self-regulatory organization as a condition of
doing business. See 15 U.S.C. § 78o(b)(1). The district court
in Florida subsequently transferred the case to the United States
District Court for the District of Columbia.

     While Alpine’s suit was pending, FINRA received reports
that Alpine was continuing to charge fees and commissions in
violation of the unchallenged cease-and-desist order. FINRA
Br. 14. FINRA’s enforcement department then opened a
second investigation that led to FINRA initiating an expedited
disciplinary proceeding against Alpine. FINRA’s complaint
alleged that Alpine had violated the cease-and-desist order
more than 35,000 times by charging over $4 million in
unreasonable fees and commissions. App. 251. The complaint
alleged only violations of internal FINRA rules; it did not
allege any violations of federal securities laws or regulations.
                                 14
FINRA’s enforcement department sought Alpine’s immediate
expulsion from FINRA. App. 265. 1

     Back in district court where its lawsuit against FINRA was
pending, Alpine sought a preliminary injunction against
FINRA’s expedited proceeding. The district court denied that
request. Scottsdale Cap. Advisors Corp. v. FINRA, 

, 94 (D.D.C. 2023). As relevant here, the court held
that FINRA is a private entity and not part of the government,
so the Appointments Clause does not apply to its personnel. Id.
at 106. Next, the court held that FINRA does not violate the
private nondelegation doctrine because the SEC can review all
FINRA decisions. Id. at 107. 2

    This court granted Alpine an emergency injunction
pending appeal, enjoining FINRA’s expedited proceeding



1
  Alpine’s conduct and allegedly repeated violations over multiple
years are not at issue in this preliminary injunction or this appeal.
We therefore express no view on any of FINRA’s decisions or
allegations, including whether Alpine committed the conduct
FINRA found or alleged, whether Alpine’s conduct violated any
FINRA rules, or what, if any, sanctions would be appropriate.
2
  The district court also rejected Alpine’s claims under the First,
Fifth, and Seventh Amendments. Scottsdale, 678 F. Supp. 3d at 106,
108. Alpine does not raise those claims on appeal. Because Alpine
does not press its Seventh Amendment claim here, the Supreme
Court’s recent decision in Securities and Exchange Commission v.
Jarkesy, 

 (June 27, 2024), does not affect our
resolution of this interlocutory appeal. See 

 at 2127–2128 (“The
Seventh Amendment therefore applies and a jury is required. Since
the answer to the jury trial question resolves this case, we do not
reach the nondelegation or removal issues.”).
                                15
against Alpine. Alpine Sec. Corp. v. FINRA, No. 23-5129,

, at *1 (D.C. Cir. July 5, 2023).

                                III

   The district court had jurisdiction under 

.
We have jurisdiction under 

(a)(1).

     A preliminary injunction is an “extraordinary remedy
never awarded as of right.” Winter v. Natural Res. Def.
Council, 

 (2008). A party requesting a
preliminary injunction must show that (1) it “is likely to
succeed on the merits”; (2) it “is likely to suffer irreparable
harm in the absence of preliminary relief”; (3) “the balance of
equities tips in [its] favor”; and (4) the issuance of a preliminary
injunction “is in the public interest.” Changji Esquel Textile
Co. Ltd. v. Raimondo, 

, 721 (D.C. Cir. 2022)
(quoting Winter, 

).

     We review the district court’s weighing of those
preliminary-injunction factors for an abuse of discretion. We
review any questions of law underlying the decision de novo.
Abdullah v. Obama, 

, 197–198 (D.C. Cir. 2014).

                                IV

     Alpine makes its two constitutional arguments in the
alternative—either (1) FINRA is a private entity that the
government has invested with too much power, in violation of
the private nondelegation doctrine, or (2) FINRA is a
governmental entity, in which case its expedited proceeding
violates the Appointments Clause of the Constitution. We
begin with Alpine’s private nondelegation argument, which
challenges the Exchange Act’s assignment of some regulatory
role to FINRA, a private entity. In doing so, we assume without
                               16
deciding that FINRA and the United States are correct that
FINRA is not a governmental entity.

     We hold that Alpine is entitled to a limited preliminary
injunction because it has demonstrated a likelihood of success
on the merits of its private nondelegation claim to the extent
that FINRA can unilaterally expel a member and, in so doing,
bar the expelled entity from engaging in stock trading, all
without governmental superintendence or control. Given that
federal securities law generally transforms FINRA’s
membership decision into a flat legal prohibition on trading
securities at all, the absence of SEC review before such a
decision takes effect likely runs afoul of the private
nondelegation doctrine, which requires that a private entity
statutorily delegated a regulatory role be supervised by a
government actor. In addition, the remaining preliminary-
injunction factors favor granting an injunction. Alpine faces
potential expulsion from FINRA, which effectively amounts to
being barred from the securities industry. Under federal law,
expulsion would likely put Alpine out of business, and would
do so before the SEC performs a full review of FINRA’s
decision.

                                A

      To begin, we find that Alpine has demonstrated that it is
likely to prevail on its private nondelegation claim to the extent
that FINRA’s expulsion decision can, due to federal law, expel
it from the securities industry. See Winter, 

.

                                1

    Congress has long delegated regulatory authority to
private entities. For example, in the early 1800s, Congress
delegated significant economic regulatory authority to the
Bank of the United States, a private entity, including the
                               17
authority to control the United States’ money supply. Gillian
E. Metzger, The Constitutional Duty to Supervise, 124 YALE
L.J. 1836, 1883 (2015) (cited in FINRA Br. 23–24); see
ALEXANDER HAMILTON, REPORT ON A NATIONAL BANK (Dec.
13, 1790) (arguing that a national bank was needed to augment
the United States’ money supply and to issue standardized
currency), available at https://perma.cc/6QE4-NRH8; 13 REG.
DEB. 440, 442 (1837) (Sen. James Buchanan) (describing the
Bank’s control of the money supply and calling the Second
Bank of the United States the “regulator of the currency”); see
also Jennifer L. Mascott, Who Are “Officers of the United
States”?, 70 STAN. L. REV. 443, 531 (2018) (“Congress saw
the bank as a public-private nongovernmental entity.”) (cited
in Alpine Opening Br. 47; FINRA Br. 23–24). Similarly, “[f]or
as long as the eminent domain power has been exercised by the
United States, it has also been delegated to private parties.”
PennEast Pipeline Co. v. New Jersey, 

, 483
(2021); see Luxton v. North River Bridge Co., 

 (1894).

     For a delegation of governmental authority to a private
entity to be constitutional, the private entity must act only “as
an aid” to an accountable government agency that retains the
ultimate authority to “approve[], disapprove[], or modif[y]” the
private entity’s actions and decisions on delegated matters.
Sunshine Anthracite Coal Co. v. Adkins, 

 (1940); see Association of American R.R.s v. Department
of Transp., 

 (D.C. Cir. 2013) (Amtrak I),
vacated on other grounds, 

 (2015); see also
Association of American R.R.s v. Department of Transp., 

 (D.C. Cir. 2018) (private delegation
constitutional where government agency “exercise[s] authority
and surveillance” over the private entity) (quotation marks
omitted); Oklahoma v. United States, 

, 228–229
(6th Cir. 2023) (similar); National Horsemen’s Benevolent &
                             18
Protective Ass’n v. Black, 

, 880 (5th Cir. 2022)
(similar); Walmsley v. Federal Trade Comm’n, 

,
1039–1040 (8th Cir. 2024) (Where a statute gives the
government agency “broad power to subordinate the [private
entity’s] enforcement activities, the statute is not
unconstitutional in all of its applications.”).

     Typically, SEC oversight of FINRA disciplinary actions
involves the SEC “conduct[ing] its own review” of any final
decision or sanction. Saad, 

; see 15 U.S.C.
§ 78s(e); see also PAZ Sec., Inc. v. SEC, 

(D.C. Cir. 2007) (Federal law requires the SEC “to review de
novo a disciplinary sanction imposed by [FINRA.]”). That
review includes an “independent review of the record” to
determine whether the FINRA member “engaged in the
conduct FINRA found,” “whether that conduct violated the
rules specified in FINRA’s determination,” and whether the
discipline otherwise accords with the Exchange Act. Devin
Lamarr Wicker, Exchange Act Release No. 100148, 

, at *7 (S.E.C. May 15, 2024). In addition, the SEC
can approve, disapprove, or modify FINRA’s actions. Saad,

; 15 U.S.C. § 78s(e)(1)(A).

                              2

     Review of expulsions imposed through FINRA’s
expedited proceedings, however, functions differently. Alpine
has shown, on the record before us, that the SEC does not
exercise ultimate control over FINRA’s decisions to expel its
members in expedited proceedings because those orders take
effect immediately, before the SEC can review them, and the
severe consequences associated with expulsion can make any
later review by the SEC a largely academic exercise.

    To begin, the SEC does not conduct any review of an
expulsion order in an expedited proceeding before it goes into
                              19
effect. Under FINRA rules, an expulsion takes effect
immediately upon the issuance and “prompt” service of
FINRA’s decision. FINRA Rules 9360, 9559(o)(5), (q)(4)–(5).
Federal law, on the other hand, specifies that SEC review must
wait until after FINRA has issued its final decision and
imposed any sanction. 15 U.S.C. § 78s(d)(1)–(2). Taken
together, those provisions mean that SEC review can come
only after, not before, the expulsion takes effect.

     Yet delayed SEC review of expulsion orders will almost
always be too little too late. With limited exceptions, federal
law prohibits entities from trading securities unless they are a
member of a registered securities association. 15 U.S.C.
§ 78o(b)(1). FINRA is the only such association in the United
States, meaning that, as a practical matter, securities traders
must be members of FINRA to conduct their business. As a
result, expulsion from FINRA effectively amounts to expulsion
from the securities industry as a whole. Expelled FINRA
members may not trade securities on behalf of themselves or
their clients. Barred from pursuing their trade, many expelled
FINRA members could be forced out of business before they
can obtain SEC review of the merits of FINRA’s decision.
That is the fate that Alpine claims will befall it. See Decl. of
Maranda E. Fritz ¶ 7, ECF 46 (May 9, 2023) (“An expulsion
order against Alpine * * * would force Alpine to close its
business.”); see also Oral Arg. Tr. 58:5–8 (FINRA’s counsel
explaining that Alpine would violate the Exchange Act if it
continued to trade securities after expulsion).

    To be sure, the SEC can stay the effectiveness of an
expulsion order. See 15 U.S.C. § 78s(d). But the SEC’s stay
authority likely is insufficient to satisfy the constitutional
requirements of meaningful SEC merits review for two
reasons.
                                20
     First, a stay is not automatic. Under both FINRA rules and
federal law, petitioning the SEC for review does not itself stay
an expulsion order.          FINRA Rule 9559(r); 15 U.S.C.
§ 78s(d)(2); 

(d). Instead, unless the SEC
chooses to act on its own, the expelled FINRA member must
file a separate written request for a stay after filing its
application for SEC review, see 

(a), (d),
and prove that it is entitled to a stay. While the SEC rules
provide that it will expedite consideration of stay requests, see

 § 201.420(d)(3), the process still takes time, during which
the total bar on securities trading will already be taking its toll.

     At oral argument, counsel for FINRA represented that the
SEC granted Alpine a stay in two business days in a prior
FINRA disciplinary matter. Oral Arg. Tr. 58:10–14. That is a
quick turnaround, but that stay appears to have been the
discretionary issuance of an interim, administrative stay just to
allow for full consideration of Alpine’s stay motion. Alpine
Sec. Corp., Exchange Act Release No. 86719, 

, at *1 (S.E.C. Aug. 20, 2019). Plus, this preliminary
record does not reveal how often such interim stays are entered
or the standard for their issuance. Full consideration of stay
motions appears to take longer, with the SEC taking weeks or
even months before acting. See, e.g., Michael Clark, Exchange
Act Release No. 92521, 

, at *1 (S.E.C. July
29, 2021) (denying stay three months after filing); Scottsdale
Cap. Advisors Corp., Exchange Act Release No. 83783, 

, at *1 (S.E.C. Aug. 6, 2018) (granting stay two
weeks after filing). Because expulsion from FINRA carries
with it a moratorium on all securities trading, even a few days
or weeks may be too long for an expelled FINRA member to
stay afloat.

     Stays are also not easily obtained. Like courts, the SEC
starts from the premise that a stay is an “extraordinary
                                21
remedy.” Michael Clark, 

, at *2 (quotation
marks omitted; citing Nken v. Holder, 

(2009)). The party seeking the stay bears the burden of proof
and must demonstrate that (1) it has a “strong likelihood” of
success on the merits; (2) it will suffer irreparable harm without
a stay; (3) no other party will suffer substantial harm as a result
of a stay; and (4) a stay is likely to serve the public interest.
NYPPEX, LLC, Exchange Act Release No. 100177, 

, at *1 (S.E.C. May 20, 2024). If an expelled member
cannot make that extraordinary showing and persuade the SEC
to exercise its discretion to grant a stay, then no timely SEC
review will be available.

     To be sure, if a stay is granted, the ensuing SEC review
would be plenary. See PAZ Sec., 

. But that
“if”—and the time it takes to get there—means that no SEC
review takes place until after the effects of any expulsion have
been felt.

      Second, the SEC’s granting or denying of a stay is not a
decision on the merits. The private nondelegation doctrine
requires that a government actor be able to “approve[],
disapprove[], or modif[y]” a private actor’s decisions on
delegated matters. See Adkins, 

; Amtrak I,

. In reviewing a stay application, however, the
SEC does none of those things. Instead, the SEC has been
explicit that a decision on a stay application does not decide the
merits, and that “[a]ny final resolution must await the
Commission’s determination of the merits of [the underlying]
appeal.” Scottsdale Cap. Advisors, 

, at *4
(quoting Bloomberg L.P., Exchange Act Release No. 83755,

, at *7 (S.E.C. July 31, 2018)); see Alpine
Sec., 

, at *1 (“[O]ur determination to grant
this interim stay should not be interpreted as suggesting that we
have decided any matter regarding this appeal[.]”).
                              22
     The result of this regulatory scheme is that FINRA can,
without any SEC review of its decision on the merits,
effectively decide who can trade securities under federal law.
Due to FINRA’s current expedited-hearing process, the SEC
statutorily cannot review expulsion orders before they go into
effect and may be unable or unwilling to grant a stay so that it
can meaningfully review a decision before it goes into effect
and the expelled member’s business collapses.

     So if the SEC reviews FINRA’s expulsion orders at all, it
does so only through a stay proceeding that disfavors
immediate relief for the expelled member and does not decide
the merits. That falls short of what the private nondelegation
doctrine requires: an accountable government actor that
“retains the discretion to approve, disapprove, or modify”
FINRA’s delegated decisions. Amtrak I, 

(formatting modified); see Adkins, 

.

     The government points out that the SEC has some
statutory authority to waive the requirement that a trader be a
member of a registered securities association. See 15 U.S.C.
§ 78o(b)(9). But even after this court invited supplemental
briefing, the SEC has made no showing that Alpine could
obtain such a waiver, let alone while FINRA’s expedited
proceeding against it is pending and before an expulsion order
could issue.

                               3

     The dissenting opinion favors a broader injunction that
would prevent FINRA from policing its member’s misconduct
at all. In doing so, the dissenting opinion goes far beyond even
Alpine’s nondelegation arguments. Remember that FINRA is
not enforcing any federal law or SEC regulation against Alpine
in the underlying proceeding. Yet the dissenting opinion
reasons that FINRA nonetheless runs afoul of the private
                               23
nondelegation doctrine by exercising “significant executive
authority” when it enforces its own private rules against a
member and seeks remedies against that member that run only
to FINRA, and not to the government. Dissenting Op. at 13–
15.

     That is incorrect on multiple fronts. To start, remember
that, in this case, FINRA is not alleging or seeking to enforce
any federal law or regulation. Its complaint is that Alpine
failed to comply with a prior FINRA cease-and-desist order
that rested solely on findings of non-compliance with FINRA’s
internal rules. App. 250–265. And Alpine chose not to seek
SEC review of that cease-and-desist order. With the exception
of the expulsion order addressed above, the dissenting
opinion’s list of activities that it equates with the exercise of
“significant executive authority” refers simply to FINRA’s
own internal procedures for investigating member compliance
with FINRA’s membership rules. In addition, any fines
ordered by FINRA are paid to FINRA, not to the United States
Treasury. Second Am. Compl. ¶¶ 41, 52–53; Financial
Guiding Principles, FINRA, at 2, https://perma.cc/SAB6-
CZ49. Many of those measures, including the conduct of
investigative hearings, predate any congressional involvement
with private securities regulators. Banner, supra, at 123–124
(fines); Constitution of the New York Stock & Exchange Board
§ 15 (hearings). They are not an authority bestowed by the
federal government.

    Next, the dissenting opinion raises a nondelegation
argument that Alpine itself has not advanced. So that cannot
provide a likelihood of success to support injunctive relief.
U.S. ex rel. Totten v. Bombardier Corp., 

(D.C. Cir. 2004) (arguments not raised on appeal are forfeited).
                                24
     Finally, the dissenting opinion’s reasoning melds the
private nondelegation doctrine with Alpine’s Appointments
Clause arguments. The latter, though, is where the Supreme
Court has housed the “significant executive authority” inquiry
on which the dissenting opinion relies. See Lucia v. SEC, 

, 245–246 (2018); Freytag v. Commissioner, 

 (1991); Buckley v. Valeo, 

 (1976)
(“[A]ny appointee exercising significant authority pursuant to
the laws of the United States is an ‘Officer of the United
States,’ and must, therefore, be appointed in the manner
prescribed by § 2, cl. 2, of [Article II].”) (quoting U.S. Const.
Art. II, § 2, cl. 2); see also Free Enter. Fund v. Public Co. Acct.
Oversight Bd., 

, 506 (2010).

     The dissenting opinion notably cites just one district court
opinion applying its “significant executive authority” test to a
private nondelegation challenge. Dissenting Op. at 8 n.28. An
argument never advanced by the party requesting a preliminary
injunction and unsupported by a single case from the Supreme
Court, this court, or any appellate court cannot establish the
likelihood of success necessary to permit the issuance of a
preliminary injunction.

                                B

     The    remaining    preliminary-injunction  factors—
irreparable harm, the balance of equities, and the public
interest—also support Alpine.

    Alpine faces irreparable harm because it faces a grave risk
of being forced out of business before full SEC review,
rendering any opportunity for later review at best inadequate
and, at worst, moot. A business’s “destruction in its current
form” commonly qualifies as irreparable harm. Washington
Metro. Area Transit Comm’n v. Holiday Tours, Inc., 

 (D.C. Cir. 1977); see In re NTE Conn., LLC, 

980, 990 (D.C. Cir. 2022) (“[F]inancial injury can be
irreparable where no adequate compensatory or other
corrective relief will be available at a later date[.]”) (formatting
modified); Wisconsin Gas Co. v. FERC, 

, 674
(D.C. Cir. 1985) (“Recoverable monetary loss may constitute
irreparable harm” if “the loss threatens the very existence of
the movant’s business.”).

    Here, Alpine has shown that its expulsion from FINRA
will effectively amount to exclusion from the securities
industry, forcing it to shutter its operations immediately. See
Decl. of Maranda E. Fritz ¶ 7, ECF 46 (May 9, 2023); see also
Oral Arg. Tr. 58:5–8 (FINRA’s counsel explaining that Alpine
would violate the Exchange Act if it continued to trade
securities after expulsion).

      Neither FINRA nor the government disputes this reality or
its crushing consequences for Alpine’s business operations. To
be sure, FINRA’s counsel at oral argument assured that Alpine
could “reinstate their business in the event that the SEC
ultimately reverses FINRA’s determination.” Oral Arg. Tr.
57:18–20. That argument blinks reality. As FINRA’s counsel
conceded, full review by the SEC could take months, if not
longer. Oral Arg. Tr. 57:24–25; see, e.g., Devin Lamarr
Wicker, 

, at *1 (affirming bar against an
individual over two years after appeal was filed). It is not
realistic to expect that Alpine, choked of any income or
business from securities trading, could simply reopen its doors
months, if not years, after FINRA locked them shut.

     The magnitude of Alpine’s injury also tips the balance of
equities in favor of Alpine. FINRA unquestionably has an
interest in enforcing its own rules. See 15 U.S.C. § 78o-3(b)(6)
(self-regulatory organizations must “protect investors and the
public interest”). FINRA argues that its interest may be
                               26
seriously impaired if the subjects of the “more than 1,000
pending FINRA investigations * * * [sought] injunctive relief
in federal court.” FINRA Br. 56. But our opinion is narrow
and limited to expedited expulsion proceedings, where the
irreversible nature of the underlying sanction prevents review
on the merits by the SEC. As a result, the impairment to
FINRA’s operations is relatively limited, and is outweighed by
the magnitude of Alpine’s injury.

     Finally, the public interest does not weigh against granting
an injunction.       An injunction ensures that Alpine’s
constitutional claims can be fully litigated, without being
throttled by a shutdown of its business. Also, the injunction
will not leave shareholders or the public unprotected from
“continued victimization” by Alpine, FINRA Br. 56. As a
threshold matter, whether Alpine actually committed the
violations FINRA alleges is not before us, and we express no
view on that issue.

     In any event, as Alpine concedes, the SEC itself remains
free to bring its own enforcement action against Alpine if it
considers such action necessary to protect the public and to
enforce securities laws. Alpine Opening Br. 51. The public
also has notice of Alpine’s prior violations through
BrokerCheck, a publicly available service that Alpine links to
from its own website.             See ALPINE SECURITIES,
https://perma.cc/PQ3C-HQG3; BrokerCheck Report: Alpine
Securities Corporation at 16, BROKERCHECK (listing required
public disclosures of prior regulatory incidents),
https://perma.cc/7PE8-H7JF; see also FINRA Rule 2210(d)(8)
(requiring member firms’ websites to include a “readily
apparent reference and hyperlink to BrokerCheck”). FINRA’s
ongoing, non-expedited proceeding against Alpine is also a
matter of public record. See FINRA Rule 8313(a) (requiring
                               27
public release of disciplinary complaints and decisions upon
request).

                               C

     For those reasons, we reverse the district court’s denial of
a preliminary injunction and instruct the district court, on
remand, to enjoin FINRA during the pendency of this litigation
from expelling Alpine (should such an order issue) until after
the SEC has reviewed any expulsion order in FINRA’s
expedited proceeding or the time for Alpine to seek SEC
review of an expulsion order has elapsed.

     Our opinion today is limited in at least four ways. First,
this case comes to us on a motion for a preliminary injunction.
Our determination is, therefore, necessarily preliminary, as the
only question is whether, on the limited record before us,
Alpine has proven it is likely to succeed and to be irreparably
harmed. See Winter, 

. Additional record
development may or may not change Alpine’s prospects. For
example, record evidence may demonstrate that Alpine can
stay in business long enough for the SEC to complete its review
of FINRA’s expedited expulsion order without injunctive
relief, or that the SEC’s stay authority functions in such a way
that a stay is effectively automatic and immediately available.

      Second, our opinion is limited to expulsion orders issued
in expedited proceedings. In many cases, the lack of pre-
enforcement government review is unlikely to violate the
Constitution because review can take place after FINRA’s
sanctions take effect. That is because many types of sanctions
imposed by FINRA, short of expulsion, can be undone later.
Censures can be rescinded, fines can be returned, and cease-
and-desist orders can be lifted. See FINRA Rule 8310(a)
(listing potential sanctions); cf. Axon Enter., Inc. v. FTC, 

, 191–192 (2023) (Parties often must “wait before
                                 28
appealing, even when doing so subjects them to significant
burdens.”) (quotation marks omitted). For that reason, Alpine
has not demonstrated at this time that it is entitled to a
preliminary injunction against any sanctions short of expulsion
that FINRA may impose in the expedited proceeding.

     Expulsion from FINRA, though, is unique because federal
law requiring membership in a self-regulatory organization, 15
U.S.C. § 78o(b)(1), forces expelled FINRA members, without
any governmental review of the merits, to shut down their
securities-trading businesses—a harm that can have immediate
and often financially devastating consequences that cannot be
adequately remedied later. That is true at least for companies
like Alpine that do not engage in any other significant business
that could sustain their operations. See BrokerCheck Report:
Alpine Securities 

 (“This firm does
not engage in other non-securities business.”). 3

     Third, this opinion does not speak to either FINRA’s own
ability to delay the effectiveness of its expulsion orders in

3
  FINRA will also sometimes bar individuals from associating with
a FINRA member. See FINRA Rule 8310(a)(5). Such a bar may be
meaningfully different from expulsion of a FINRA member firm
since a person barred from trading securities can pursue other work
while appealing to the SEC, while a firm organized for the purpose
of trading securities cannot.

  We also note that membership in a registered securities association
like FINRA is not mandatory for securities traders that only trade on
one exchange. 15 U.S.C. § 78o(b)(1). Such firms can instead be
members of the exchanges on which they trade. Id. Alpine does not
trade exclusively on one exchange. We therefore express no view as
to the constitutional implications of FINRA’s expulsion of a firm that
trades on only one exchange and chooses to be a member of both
FINRA and that exchange.
                               29
expedited proceedings, or the SEC’s authority to lower its stay
standard in expulsion cases. We note, for example, that FINRA
automatically stays the effectiveness of all sanctions other than
a bar or expulsion issued following a non-expedited
disciplinary proceeding. FINRA Rule 9370(a). The SEC also
sometimes stays monetary penalties or short-term suspensions
regardless of the likelihood of success on the merits. See, e.g.,
Allen Holeman, Exchange Act Release No. 86769, 

, at *2 (S.E.C. Aug. 26, 2019); Donald L. Koch,
Exchange Act Release No. 3860, 

, at *3 n.15
(S.E.C. June 20, 2014) (“While [the SEC has] customarily
stayed suspensions less than a bar, granting a stay of a
permanent bar pending Commission review [is] appropriate
only in extraordinary circumstances.”) (formatting modified).

    Fourth, nothing in our opinion questions the
constitutionality of enforcing an expulsion order, or any other
sanction, after the SEC has affirmed it. Alpine has raised no
such argument here and has not sought a preliminary injunction
on that basis. So all we hold today is that it appears on this
record that SEC review is not available as a practical matter in
expedited expulsion proceedings prior to businesses being
forced to close, and that gap likely runs afoul of the private
nondelegation doctrine.

                               V

     We turn next to Alpine’s Appointments Clause claims.
Alpine argues that FINRA’s hearing officers are officers of the
United States who must be appointed in conformance with the
Appointments Clause and must be removable at will. Alpine
Opening Br. 42–47. We hold that Alpine is not entitled to a
preliminary injunction on these claims because it has not
demonstrated that it will suffer irreparable harm from its
                                30
asserted Appointments Clause violations pending resolution of
the district court case.

     “A preliminary injunction is an extraordinary remedy
never awarded as of right.” Winter, 

; see Benisek
v. Lamone, 

, 158 (2018); Singh v. Berger, 

, 95 (D.C. Cir. 2022). To that end, parties seeking a
preliminary injunction, among other things, must clear a “high
standard” and demonstrate that their injury is “both certain and
great[.]” Chaplaincy of Full Gospel Churches v. England, 

, 297–298 (D.C. Cir. 2006) (quotation marks omitted).
That is, parties must demonstrate that their injury is sufficiently
serious that there is a “clear and present need for equitable
relief” on an expedited timeline and without the benefit of full
factual development and hurried consideration of legal
questions. 

 (quotation marks omitted).

     Alpine makes two arguments for irreparable harm arising
from the alleged Appointments Clause violations. First, it
claims that FINRA can force it to close. Alpine Opening Br.
48. Second, it claims that it is being subjected to an
unconstitutional proceeding before an unconstitutional body.
Alpine Opening Br. 48. On this early record, neither of those
injuries necessitates preliminary injunctive relief as to Alpine’s
Appointments Clause claims.

                                A

    We begin with the asserted harm of forced closure as a
result of expulsion from FINRA. That harm is no longer
pressing given that we have already held that FINRA cannot
expel Alpine until after the SEC has reviewed such a decision
and made its own determination as to whether Alpine can
continue to trade securities. Under the limited preliminary
injunction we have ordered, the SEC will have the final word.
And what the SEC will independently decide, after
                               31
“conduct[ing] its own review,” Saad, 

, about
Alpine’s ability to continue to trade securities is unknown. In
fact, Alpine has previously “succeed[ed] * * * in having all the
findings and sanctions of the FINRA Hearing Officer reversed
by the SEC.” Alpine Br. 48, see Scottsdale Cap. Advisors
Corp., Exchange Act Release No. 93052, 

,
at *1 (S.E.C. Sept. 17, 2021) (“Upon our independent review
of the record, * * * we have determined to set aside FINRA’s
findings of violations and the imposition of sanctions.”).
Without knowing how the SEC will rule and without any
argument from Alpine about the likelihood that the SEC would
uphold an expulsion order (should FINRA issue one), Alpine’s
expulsion after full SEC review is far too uncertain and
unpredictable at this time to warrant the extraordinary relief of
a preliminary injunction. See Chaplaincy, 

.

     Even if the SEC ultimately were to affirm an expulsion
order against Alpine, the significant consequences that come
with expulsion from FINRA would be imposed by the SEC, not
FINRA. Alpine, notably, does not dispute that the SEC’s
members are constitutionally appointed and have the authority
to expel Alpine from the securities industry consistent with the
Appointments Clause. To be sure, if FINRA’s structure were
ultimately held to violate the Appointments Clause, then
arguably a new hearing before a properly appointed hearing
officer might be necessary even if the SEC separately signed
off on any expulsion order. See Lucia, 585 U.S. at 251 (“[T]he
appropriate remedy for an adjudication tainted with an
appointments violation is a new hearing before a properly
appointed official.”) (quotation marks omitted). But those
questions are best considered after the SEC has rendered its
decision in this case, not before, as Alpine raises no claim of
irreparable harm from the SEC review process itself. We
accordingly express no view on those questions.
                              32
                              B

                              1

     Without the possibility of unilateral expulsion from the
securities industry by FINRA, Alpine is left with its asserted
injury of being forced to litigate before an allegedly
unconstitutionally appointed FINRA officer. Invoking prior
circuit precedent that holds that constitutional violations
“constitute[] irreparable injury[,]” Alpine claims that the
alleged violations of the Appointments Clause it identifies are
“per se irreparable harm.” Alpine Opening Br. 48 (quoting
Mills v. D.C., 

 (D.C. Cir. 2009)).

    Three of our prior cases foreclose that argument.

     First, in Deaver v. Seymour, 

 (D.C. Cir. 1987),
Deaver sought a preliminary injunction against a criminal
investigation led by an independent counsel, 

. Deaver
claimed that the independent counsel had been
unconstitutionally appointed. 

. This court held that,
even assuming that the independent counsel was a “a pretender
to the throne,” any Appointments Clause violation was not
irreparable because it could be redressed “by a reversal of any
conviction.” 

 at 70–71; see 

 (Ginsburg, J.,
concurring) (“It is of no moment that Deaver bases his
challenge upon the alleged unconstitutionality of the office of
independent counsel[.]”). The court further explained that to
hold otherwise would circumvent the final judgment rule. 

. And it would force us to decide “serious” issues with
“far-ranging and troubling constitutional implications” through
“accelerated and unorthodox review”—constitutional
questions that we would have no need to decide should Deaver
be acquitted. 

 Because “[w]e have an obligation to avoid
constitutional questions if at all possible[,]” we affirmed the
district court’s denial of a preliminary injunction. Id.; see
                                33
Camreta v. Greene, 

 (2011) (“A longstanding
principle of judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of deciding
them.”) (quotation marks omitted); Liverpool, N.Y. & Phila.
S.S. Co. v. Emigration Comm’rs, 

 (1885). As
Chief Justice Rehnquist observed when denying a stay in
Deaver, “[t]here [would] be time enough for [Deaver] to
present his constitutional claim to the appellate courts if and
when” Deaver were to be convicted in the underlying
prosecution. Deaver v. United States, 

, 1303
(1987) (Rehnquist, C.J., in chambers).

     Second, in In re al-Nashiri, 

 (D.C. Cir. 2015),
a Guantanamo Bay detainee sought mandamus relief against an
ongoing military commission proceeding on the ground that the
commission’s judges were not appointed in conformance with
the Appointments Clause, 

. Of course, the standards
for mandamus relief and preliminary injunctions differ in some
respects. But what matters here is that they both require the
movant to show irreparable injury. Compare National Ass’n of
Crim. Def. Lawyers, Inc. v. Department of Justice, 

 (D.C. Cir. 1999) (“[T]o determine whether a
‘supervisory’ writ of mandamus shall issue,” courts consider
whether the party seeking the writ “will be harmed in a way not
correctable on appeal[.]”), with Changji Esquel Textile 1 Co.
Ltd., 40 F.4th at 721 (“A plaintiff seeking a preliminary
injunction ‘must establish that * * * he is likely to suffer
irreparable harm in the absence of preliminary relief[.]’”)
(quoting Winter, 

).

    In that vein, In re al-Nashiri held that the detainee had not
demonstrated irreparable harm because he had not identified
any “immediate or ongoing harm stemming from the [military
commission’s] alleged constitutional defects.” 

.
For example, the commission had not yet convicted the
                              34
detainee, and the detainee had not alleged that the improperly
appointed judges were biased against him. 

 at 79–80. Said
another way, In re al-Nashiri holds that simply participating in
a proceeding conducted by an allegedly unconstitutionally
appointed officer is not itself irreparable harm that justifies
extraordinary relief. See 

     Third, in John Doe Co. v. Consumer Financial Protection
Bureau, 

 (D.C. Cir. 2017), a private company
sought a preliminary injunction against an investigation by the
Consumer Financial Protection Bureau, 

. The
company claimed that (1) the Bureau was unconstitutionally
structured; (2) the investigation against it violated the
separation of powers; and (3) “any alleged separation-of-
powers injury is by its very nature irreparable.” 

 at 1133–
1135. We rejected that third argument and held that, “[i]n the
absence of ‘immediate or ongoing harm stemming from the
[Bureau’s] alleged constitutional defects,’ the ‘violation of
separation of powers’ by itself is not invariably an irreparable
injury.” 

 (second alteration in original) (quoting In
re al-Nashiri, 791 F.3d at 79–80).

     Taken together, those three cases squarely hold that being
investigated by, or participating in a proceeding before, an
unconstitutionally appointed officer is not, without more, an
injury that necessitates preliminary injunctive relief. And
Alpine has not asserted anything more. See Leachco, Inc. v.
Consumer Prod. Safety Comm’n, 

, 754 (10th Cir.
2024) (“[A] separation of powers violation, alone, [does] not
constitute irreparable harm[.]”).

     As a panel, we are bound by our precedent unless
“intervening Supreme Court precedent * * * clearly dictate[s]
a departure[.]” Bahlul v. United States, 

, 926 (D.C.
Cir. 2023) (quoting Old Dominion Elec. Coop. v. FERC, 892
                               

, 1232 n.2 (D.C. Cir. 2018)); see also LaShawn A. v.
Barry, 

 (D.C. Cir. 1996) (en banc). To do
so, intervening Supreme Court authority must “effectively
overrule, i.e., eviscerate, the law of our circuit.” Bahlul, 77
F.4th at 925 (formatting modified).

    Alpine, however, makes no argument at all that our
precedent has been effectively overruled or that there is any
other basis on which this panel could depart from it. In fact,
Alpine ignores all three of those cases.

                               2

     The dissenting opinion makes arguments on Alpine’s
behalf that it has forfeited. But to no avail. For example, the
dissenting opinion claims that our decision in Deaver depended
critically on “the Federal Rules of Criminal Procedure,
criminal-law precedents, equity’s interaction with criminal
proceedings, and the collateral-order exception to the final-
judgment rule[,]” none of which this case involves. Dissenting
Op. at 25. To be sure, the court in Deaver mentioned those
factors. 822 F.2d at 70–71. But its ultimate ruling did not
depend on them. Instead, the ruling—like Chief Justice
Rehnquist’s own decision—hinged on the availability of full
relief on later review. Id. at 71; see Deaver, 483 U.S. at 1303
(Rehnquist, C.J., in chambers) (“There will be time enough for
applicant to present his constitutional claim to the appellate
courts if and when he is convicted of the charges against him.”).
That has to be right. Court-made rules and precedent
necessarily would have to take a back seat if just going forward
with the case inflicted a constitutional injury.

    The dissenting opinion equally errs in arguing that In re
al-Nashiri confined its holding to the context of military
commissions. See Dissenting Op. at 25–26. Considerations
about insulating the military from legislative or judicial
                              36
interference appear nowhere at all—not one word—in al-
Nashiri’s analysis of irreparable harm. See 791 F.3d at 79–81.
This court’s historic practice of faithful panel adherence to
circuit precedent cannot be circumvented by pretending a prior
decision said something it plainly did not.

     Finally, the dissenting opinion’s effort to unravel the
precedential status of John Doe fails. This court has treated
that published decision as binding precedent for seven years.
See, e.g., Archdiocese of Wash. v. Washington Metro. Area
Transit Auth., 

 (D.C. Cir. 2017); CFPB v.
Accrediting Council for Indep. Colls. & Schs., 

 (D.C. Cir. 2017). A later panel is not free to sweep away
that history. Especially based on an argument that no party has
advanced.

                               C

     Turning to the arguments that Alpine raises to support its
preliminary injunction motion, Alpine anchors its irreparable
harm argument in Axon Enterprises v. Federal Trade
Commission, 

 (2023), arguing that it automatically
mandates a finding of irreparable harm here. That is incorrect.

     In Axon, the question before the Supreme Court was
whether parties to an ongoing proceeding before a
governmental agency had to first go through the agency’s
administrative process before suing in federal court to
challenge the administrative proceeding’s structural
constitutionality. 

. The Supreme Court
concluded that they do not because, in enacting the relevant
statutory review schemes, 

(c), 78y, “Congress
[did] not intend to limit [court] jurisdiction” when
constitutional challenges are made to the agency process itself.
Axon, 

. The Supreme Court reasoned that an
alleged Appointments Clause violation is “a here-and-now
                               37
injury” that “is impossible to remedy once the [administrative]
proceeding is over,” 

 (quotation marks omitted), and
so an aggrieved party could file that constitutional challenge
directly in federal court.

     Seizing on that language, Alpine claims that Axon held that
being forced to participate in an unconstitutional agency
proceeding necessarily qualifies as irreparable harm supporting
the issuance of a preliminary injunction. That overreads Axon
in two respects.

     First, Axon answered a statutory jurisdictional question
about whether Congress intended to “oust[] district courts of
jurisdiction” they would ordinarily have by requiring that
parties instead litigate their claims through agency
proceedings. Axon, 598 U.S. at 185–186. The Court’s answer
to Axon’s question turned in significant part on the common-
sense intuition that a structural constitutional question was both
“wholly collateral to” the questions at issue in agency
proceedings and lies “outside the agency’s expertise.” 

.

     In finding Axon’s claims within the district court’s
ordinary jurisdiction, the Court did not speak to what
constitutes irreparable harm for purposes of the extraordinary
remedy of a preliminary injunction. True, the Court also
reasoned that the injury it identified could not be remedied if a
party were forced to litigate before the agency prior to raising
its claims in federal court. Axon, 

. But here,
there is no barrier to Alpine litigating its constitutional claims
directly in federal court. That is exactly what it has done.
Instead, the question before us, which was not answered in
Axon, is whether the injury Alpine claims is so great that it
necessitates “accelerated and unorthodox” summary review of
the merits without a developed factual record. Deaver, 822
                              38
F.2d at 71; see Harrel v. Raoul, 

, 2492 (2024)
(Thomas, J., statement respecting the denial of certiorari)
(“This Court is rightly wary of taking cases in an interlocutory
posture.”); O Centro Espirita Beneficiente Uniao Do Vegetal
v. Ashcroft, 

 (10th Cir. 2004) (en banc)
(McConnell, J., concurring) (“[M]any preliminary injunctions
must be granted hurriedly and on the basis of very limited
evidence,” forcing courts “to make a choice under conditions
of grave uncertainty.”).

     Put another way, Axon at most says that, as a matter of
statutory jurisdiction, a federal-court challenge to an
unconstitutional appointment can begin before the agency acts.
It does not say that every agency proceeding already underway
must immediately be halted because of an asserted
constitutional flaw. So while Alpine’s interpretation of Axon
is “arguable,” Axon does not “clearly dictate a departure from
circuit law.” Bahlul, 77 F.4th at 926 (quotation marks omitted).
Importantly, Alpine does not argue otherwise.

     Second, as Alpine’s private nondelegation argument
suggests, FINRA is not a government agency like those at issue
in Axon. FINRA is a Delaware nonprofit corporation, and its
personnel are private employees, not government employees.
Regardless of whether FINRA is ultimately found to be
wearing a government hat when it expels members, it is also
formally a private, self-regulatory membership organization.
Nothing in Axon addressed an asserted injury from a member
of a private organization having to go through a hearing process
before such an entity. Whether or not Alpine has a meritorious
Appointments Clause objection to the FINRA process in its
current form, Axon does not speak to the nature of any such
injury clearly enough to “dictate a departure” by this panel
from prior circuit precedent. Bahlul, 77 F.4th at 926 (quotation
                               39
marks omitted). And again, Alpine tellingly has not argued to
the contrary.

     In sum, we hold that Alpine has not demonstrated
irreparable harm stemming from the alleged violations of the
Appointments Clause other than the harm from expulsion that
is already redressed by the nondelegation preliminary
injunction. Because “[a] movant’s failure to show any
irreparable harm is * * * grounds for refusing to issue a
preliminary injunction,” we hold that Alpine is not entitled to a
preliminary injunction based on its asserted Appointments
Clause violations. Chaplaincy, 

; see Winter,

 (Issuing a preliminary injunction without
“demonstrat[ing] that irreparable injury is likely * * * is
inconsistent with our characterization of injunctive relief as an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.”). We
accordingly express no view on the remaining preliminary-
injunction factors, including whether Alpine has demonstrated
a likelihood of success on the merits of the applicability of the
Appointments Clause to FINRA’s employees. All we hold is
that Alpine has not shown, on this record, that any such
violation would present irreparable harm to Alpine that
necessitates the exceptional remedy of a preliminary injunction
against the proceeding itself.

                               VI

     “‘Long settled and established practice may have great
weight’ in interpreting constitutional provisions about the
operation of government.” CFPB v. Community Fin. Servs.
Ass’n of America, 

, 442 (2024) (Kagan, J.,
concurring) (quoting Chiafalo v. Washington, 

,
592–593 (2020)). Self-regulation in the securities industry has
existed for centuries, and Congress has repeatedly reaffirmed
                               40
its own nearly century-old commitment to this system. Given
that history and the preliminary record in this case, we proceed
carefully at this early stage of the litigation, where we lack the
benefit of full factual development and the wisdom it affords.

     Alpine has met its burden of demonstrating a likelihood
that the private nondelegation doctrine requires that SEC
review be available before Alpine can be expelled from FINRA
because, under federal law, that decision would effectively ban
Alpine from the securities trading industry. Alpine has also
shown that it faces irreparable harm if expelled from the
securities industry in that it will have to shut down its business
immediately. For those reasons, the district court erred in
denying Alpine a preliminary injunction protecting it against
being expelled from FINRA (should FINRA issue such an
order) until either the SEC affirms FINRA’s decision or the
time for Alpine to seek SEC review has elapsed.

     As to Alpine’s Appointments Clause claims, Alpine has
not demonstrated that it faces irreparable harm stemming from
participating in FINRA’s hearing process enforcing FINRA’s
membership rules, since FINRA’s decision can no longer pose
the threat of wholesale exclusion from securities trading. For
that reason, Alpine is not entitled to a preliminary injunction
against FINRA’s expedited proceeding itself, and FINRA may
resume the expedited proceeding against Alpine.

     Finally, we underscore that nothing in this opinion
resolves Alpine’s claims on the merits. We leave that for the
district court to decide on remand.

     For the foregoing reasons, we reverse the district court
insofar as it held that FINRA could singlehandedly expel
Alpine and thereby exclude it from the securities trading
industry, and remand for the court to enter a limited
preliminary injunction enjoining FINRA from giving effect to
                               41
any expulsion order issued against Alpine until either the SEC
reviews the order on the merits or the time for Alpine to seek
SEC review lapses. The injunction pending appeal entered by
this court on July 5, 2023, is hereby dissolved only to the extent
that it enjoins FINRA’s expedited proceeding from going
forward. The portion of the injunction that would preclude
FINRA from giving effect to any expulsion order it might issue
against Alpine will remain in effect until the district court
issues its injunction.

                                                     So ordered.
     WALKER, Circuit Judge, concurring in the judgment in
part and dissenting in part:

     Article II of the Constitution begins, “The executive Power
shall be vested in a President of the United States of America.”
That means private citizens cannot wield significant executive
authority. Nor can anyone in the government, except for the
President and the executive officers appointed and removable
consistent with Article II.

    The Financial Industry Regulatory Authority is a
nominally private corporation. It investigates, prosecutes, and
adjudicates violations of federal securities laws. Those laws
generally forbid broker-dealers from doing business unless
they belong to FINRA.

    Today, the majority holds that the Constitution likely
requires government review before FINRA may expel a
company from its ranks and thereby put that company out of
business. That holding is a victory for the Constitution.

    But it is only a partial victory because the problems with
FINRA’s enforcement proceedings run even deeper. FINRA
wields significant executive authority when it investigates,
prosecutes, and initially adjudicates allegations against a
company required by law to put itself at FINRA’s mercy. That
type of executive power can be exercised only by the President
(accountable to the nation) and his executive officers
(accountable to him).

    By flouting that principle through an “illegitimate
proceeding, led by an illegitimate decisionmaker,”1 FINRA
imposes an irreparable injury that this court should prevent by
granting the requested preliminary injunction in its entirety.


1
    Axon Enterprise, Inc. v. FTC, 

, 903 (2023).
                                  2

     I respectfully dissent from the majority’s decision to deny
that relief.

                                  I

     In response to the 1929 stock market crash and the onset
of the Great Depression, Congress enacted a series of laws to
regulate securities trading.2 The Securities Exchange Act of
1934 introduced registration, disclosure, and reporting
requirements designed to restore confidence in the U.S. stock
market.3 The Act also created the Securities and Exchange
Commission to enforce the nation’s securities laws.

     A few years later, the Maloney Act addressed trading
activity outside the major exchanges.4 It encouraged broker-
dealers to organize securities associations and register them as
self-regulatory bodies.5

2
  See SEC v. Jarkesy, 

, 2125 (2024).
3
  Securities Exchange Act of 1934, 

 Stat. 881
(1934) (codified at 15 U.S.C. § 78a, et seq.).
4
  See Maloney Act of 1938, ch. 677, sec. 1, § 15A(b)(3), 

, 1070 (1938) (codified at 15 U.S.C. § 78o-3(b)(11)).
5
  See id. sec. 1, § 15A(a), 52 Stat. at 1070; United States v. National
Association of Securities Dealers, Inc., 

, 700 n.6 (1975)
(“The Maloney Act supplements the Securities and Exchange
Commission’s regulation of the over-the-counter markets by
providing a system of cooperative self-regulation through voluntary
associations of brokers and dealers.”).
   The Maloney Act was not the government’s first attempt to
regulate over-the-counter activity. President Roosevelt approved in
1934 an applicable “code of fair competition” under the National
Industrial Recovery Act. Hester Peirce, The Financial Industry
Regulatory Authority: Not Self-Regulation After All, in Building
Responsive and Responsible Financial Regulators in the Aftermath
                                   3
    For several decades, membership in securities associations
was voluntary.6 But in 1983, Congress changed course and
made membership mandatory for nearly all brokers and
dealers.7 And today, the only securities association recognized
by the SEC is FINRA.8 That means, in effect, membership in
FINRA is mandatory for anyone who wants to run a brokerage.


of the Global Financial Crisis 234 (Pablo Iglesias-Rodríguez ed.,
2015). But this was short-lived, as the Supreme Court ruled in 1935
that the Act was unconstitutional. A.L.A. Schechter Poultry Corp. v.
United States, 

 (1935).
6
  Over-the-Counter Trading and the Maloney Act, 

,
646 (1939).
   While federal law did not mandate membership, over-the-counter
stockbrokers were faced with “two choices, either to join a registered
association and get some voice as to what rules shall govern them, or
stay out and be regulated by the Commission.” 

 As an additional
incentive, the Act provided members with a limited exemption from
the antitrust laws that permitted members to offer discounts
exclusively to members. Maloney Act, sec. 1, § 15A(i)(3), (n), 52
Stat. at 1074-75.
7
  An Act To Make Certain Amendments to Sections 4, 13, 14, 15,
and 15B of the Securities Exchange Act of 1934, sec. 3, § 15(b)(8),

, 206-07 (1983) (“It shall be unlawful for any broker or
dealer required to register pursuant to this title to effect any
transaction in . . . any security . . . unless such broker or dealer is a
member of a securities association . . . .”) (codified as amended at 15
U.S.C. § 78o(a)(1), (b)(1)).
8
  See Exemption for Certain Exchange Members, 

, 61,851 (Sept. 7, 2023) (noting FINRA is “the only”
registered national securities association).
   FINRA is the product of a 2007 merger between the National
Association of Securities Dealers and the New York Stock
Exchange’s enforcement arm. Order Approving Proposed Rule
Change to Amend the By-Laws of NASD, 

,
42,169-70 (Aug. 1, 2007).
                                      4

    FINRA is led by a Board of Governors,9 comprised of
“industry” and “public” representatives, who are either elected
by FINRA’s members or appointed by the Board itself.10 The
Board selects a chief executive officer, who directly supervises
the Office of Hearing Officers.11 The hearing officers preside
over enforcement proceedings.12

     Though FINRA describes itself as “a private corporation
that the government did not create and does not control,” it
functions in ways similar to a government agency.13 Federal

   The federal statute that requires all brokerages to maintain
membership in a securities association does have what might be read
as an exception — 15 U.S.C. § 78o(b)(9) authorizes the SEC to
“conditionally or unconditionally exempt from [the requirement to
join a securities association] any broker or dealer.” However, it
appears that this provision has been used only to create formal rules
carving out broad, categorical exemptions for groups of broker-
dealers whose activities fall somewhat outside the gambit of the
industries FINRA is expected to regulate.                     See 

.15b9-1, 240.15b9-2; U.S. Securities Corp., SEC Staff No-
Action Letter, 1995 SEC No-Act. LEXIS 470, at *3 (Feb. 1, 1995).
9
   See By-Laws of the Corporation, FINRA, art. VII, § 1,
https://perma.cc/8FUG-PPKZ.
10
   See id. art. I, §§ (n), (r), (t), (w), (z), (dd), (tt), (xx) (defining each
type of representative); id. art. VII, § 4(a) (Composition and
Qualifications of the Board); id. art. VII, § 5 (Term of Office of
Governors).
11
    See id. art. VIII, § 1; Office of Hearing Officers, FINRA,
https://perma.cc/VM5D-7RP2 (“OHO reports directly to FINRA’s
Chief Executive Officer.”).
12
     See Office of Hearing Officers, FINRA (“Hearing
Officers . . . preside over disciplinary and expedited actions
commenced by FINRA’s Enforcement Department . . . .”).
13
   FINRA Br. at 2.
                                 5
law grants FINRA the power to promulgate rules that carry “the
force of law” upon SEC approval.14 In addition to that quasi-
legislative power, FINRA acts in “an adjudicatory and
prosecutorial capacity” and “is required by statute to enforce
the securities laws.”15

     In particular, FINRA is responsible for “enforc[ing]
compliance” with the Securities Exchange Act and any “rules
and regulations thereunder.”16 Much like the SEC, FINRA has
its own “Department of Enforcement,” which can initiate
investigations and prosecutions when it suspects a violation of
“any rule, regulation, or statutory provision, including the
federal securities laws and the regulations thereunder.”17

    The Department of Enforcement conducts invasive
investigations. It can require brokers to “provide information

14
   See McDaniel v. Wells Fargo Investments, LLC, 

(9th Cir. 2013).
   FINRA itself has claimed — in other contexts where the
constitutionality of its structure has not been challenged — that
“FINRA rules have the force and effect of a federal regulation.” In
re Charles Schwab & Co., 

, at *16 (FINRA Apr.
24, 2014).
15
   See Austin Municipal Securities, Inc. v. National Association of
Securities Dealers, Inc., 

 (5th Cir. 1985).
16
   15 U.S.C. § 78s(g)(1); see also National Association of Securities
Dealers, Inc. v. SEC, 

 (D.C. Cir. 2005) (noting that
FINRA has “express statutory authority to adjudicate actions against
members who are accused of illegal securities practices and to
sanction members found to have violated the Exchange Act or
Securities and Exchange Commission . . . regulations”).
17
   FINRA Rule 9211(a)(1).
   FINRA’s rules, including past versions, can be accessed at
https://www.finra.org/rules-guidance/rulebooks/finra-rules.
                                  6
orally, in writing, or electronically.”18 It also can force a
broker’s employees to “testify at a location specified by
FINRA staff, under oath or affirmation.”19

    After that, FINRA may initiate a formal enforcement
proceeding to fine members or expel them from FINRA.20
Because FINRA membership is mandatory, expulsion from
FINRA is, in effect, expulsion from the securities industry.
From a broker’s perspective, it’s the “corporate death penalty.”

     These enforcement proceedings come in two forms. In the
ordinary proceeding, a member may appeal an unfavorable
ruling first to an internal appellate tribunal and then to the
SEC.21 But in an expedited proceeding, sometimes overseen
by only one hearing officer, internal review of the decision is
discretionary, and the hearing officer’s decision to expel a
member takes effect immediately, before the member can
appeal to the SEC.22

     This panoply of enforcement powers requires no
contemporaneous oversight by the SEC. The SEC does not
control FINRA’s investigations, its prosecutions, or its initial
adjudications. Until the SEC accepts an appeal from a final
FINRA decision, FINRA wields its enforcement powers
unilaterally.


18
   FINRA Rule 8210(a)(1).
19
   

20
   FINRA Rules 8310(a), 9211(a).
21
   FINRA Rules 9311(a), 9349(a), 9370(a).
   The FINRA Board may, at its discretion, choose to review a case
heard by the internal appellate tribunal and affirm, modify, or reverse
its decision. FINRA Rule 9351(a), (d).
22
   FINRA Rule 9559(d), (q), (n), (r).
                                  7

    Today’s case illustrates those powers in action. For almost
six years, FINRA has been investigating and prosecuting
Alpine Securities Corporation. Three years into that process,
FINRA decided to expel Alpine from the securities industry,
and it ordered Alpine to cease and desist its alleged
misconduct.

     While contesting that decision before FINRA’s appellate
tribunal, Alpine challenged FINRA’s constitutionality in
federal court. During that litigation, FINRA launched an
expedited proceeding to immediately expel Alpine for
allegedly violating the cease-and-desist order. Though Alpine
could ask the SEC to review any final expulsion order, an
emergency expulsion order is not automatically stayed during
the SEC’s review.23

     So Alpine moved to preliminarily enjoin that emergency
proceeding until the final resolution of its claims. When the
district court denied that motion, Alpine appealed. A panel of
this court determined that Alpine’s arguments merited an
injunction pending appeal.24

                                 II

    We consider four factors when deciding whether Alpine
should receive a preliminary injunction: Is Alpine likely to
succeed on its claims? Will it likely suffer an irreparable injury

23
  FINRA Rule 9559(r).
24
   See Alpine Securities Corp. v. FINRA, 

, at *1
(D.C. Cir. July 5, 2023); see also id. at *4 (Walker, J., concurring)
(“There is a serious argument that FINRA hearing officers exercise
significant executive power. And it is undisputed that they do not act
under the President. That may be a constitutional problem.”).
                                    8
without relief? Who does the balance of equities favor? And
which side does the public interest support?25 The first two
factors — likelihood of success and irreparable injury — “are
the most critical” in this inquiry.26 We review a district court’s
weighing of factors for abuse of discretion and its legal
conclusions de novo.27

                                   III

     The merits of this case turn on two bedrock principles.
First, the government must not delegate significant executive
authority to private actors. Second, public officers must not
exercise significant executive authority unless they are
removable by the President and properly appointed.28

    Alpine has made a strong showing that FINRA, whether
private or public, violates one of these principles.


25
   See Winter v. Natural Resources Defense Council, Inc., 

 (2008).
26
   Trump v. Thompson, 

, 31 (D.C. Cir. 2021) (quoting
Nken v. Holder, 

 (2009)).
27
   See Huisha-Huisha v. Mayorkas, 

, 726 (D.C. Cir.
2022).
28
   The majority criticizes this formulation, claiming it “melds the
private nondelegation doctrine with Alpine’s Appointments Clause
arguments.” Majority Op. at 24. But the private nondelegation
doctrine and Appointments Clause can be viewed as two sides of the
same coin, even though they have developed on separate doctrinal
tracks. See United States ex rel. Zafirov v. Florida Medical
Associates, LLC, No. 8:19-CV-01236-KKM-SPF, 

, slip op. at 49 n.8 (M.D. Fla. Sept. 30, 2024) (“The Supreme
Court has, at times, articulated the ‘significant authority’ element of
its test for officer status as a negative restraint on delegated executive
power.”).
                                 9
                                 A

     Article II of the Constitution vests the “executive Power”
with the President.29 This vesting clause is “essentially a grant
of the power to execute the laws.”30 Article II further provides
that the President “shall take Care that the Laws be faithfully
executed.”31      Thus, any “enforcement of federal law”
necessarily implicates the executive power,32 because the
authority “to enforce [federal laws] or appoint the agents
charged with the duty of such enforcement” are “executive
functions.”33

     It “would be impossible for one man to perform” all
enforcement actions himself.34 So the Constitution “assumes”
that the President will appoint “lesser executive officers” to
assist in “discharging the duties of his trust.”35 Depending on
the circumstances, these officers can investigate citizens,
search their homes, arrest them, question them, issue regulatory
orders, and carry out judicially approved penalties ranging
from fines to imprisonment.36

29
   U.S. Const. art. II, § 1; Seila Law, LLC v. CFPB, 

 (2020) (recognizing that the executive power “belongs to the
President alone”).
30
   Myers v. United States, 

 (1926).
31
   U.S. Const. art. II, § 3.
32
   Nixon v. Fitzgerald, 

 (1982).
33
   Springer v. Government of the Philippine Islands, 

 (1928).
34
   Seila Law, 

 (cleaned up).
35
   

36
   See National Horsemen’s Benevolent & Protective Association v.
Black, 

, 428 & nn.9-10 (5th Cir. 2024) (listing
“quintessentially executive functions” and citing authorities).
                                   10

     While any government employee who enforces federal law
exercises some amount of Executive Power, anyone who
continuously and permanently “exercis[es] significant
authority pursuant to the laws of the United States is an
‘Officer of the United States.’”37 An “Officer” must be
properly appointed (as prescribed by Article II’s Appointments
Clause) and properly removable by the President (as implied
by Article II’s Vesting Clause).38 Those requirements increase
the officer’s accountability to the President, who is accountable
to the people, whose liberty is at stake.

    Because these constitutional safeguards have been thought
to apply only to the government, not private actors,39 “core

37
   Buckley v. Valeo, 

 (1976) (emphasis added).
38
   U.S. Const. art. II, § 2, cl. 2 (Appointments Clause); id. art. II, § 1,
cl. 1 (Vesting Clause); see also Seila Law, 

; Lucia
v. SEC, 

 (2018).
39
   See, e.g., San Francisco Arts & Athletics, Inc. v. United States
Olympic Committee, 

 (1987) (stating that in
analyzing whether the U.S. Olympic Committee violated the First
Amendment, the “fundamental inquiry is whether [it] is a
governmental actor to whom the prohibitions of the Constitution
apply”); National Horsemen, 107 F.4th at 436-37 (“Challenges
based on private nondelegation, on the one hand, and the
Appointments Clause, on the other, appear mutually exclusive.”); cf.
Alexander Volokh, The Myth of the Federal Private Nondelegation
Doctrine, 

, 248 (2023) (“This strict
separation-of-powers view opposes delegations to private parties
because they’re not part of the government. But presumably, if those
private parties went through presidential nomination and Senate
confirmation, the problem would be cured, because that appointment
would have made them part of the federal government (most likely
part of the executive branch). Perhaps a proponent of that view
would say that this ‘private’ party had thereby become ‘public.’ And
                                  11
governmental power must be exercised by the Department on
which it is conferred and must not be delegated to others in a
manner that frustrates the constitutional design.”40 So just as
Congress cannot delegate its legislative power to the President,
the President’s executive power cannot be delegated away from
the Executive Branch.41

     Even worse than an interbranch delegation is an
extrabranch delegation — the “most obnoxious form” of
delegation.42 If the vast powers of the federal government
could be exercised outside the constitutional system, the
government would be “able to evade the most solemn
obligations imposed in the Constitution by simply resorting to
the corporate form.”43




my view is essentially the same: any private party can validly wield
federal governmental power, provided they are properly appointed.
I don’t particularly care whether we label them ‘public’ or ‘private,’
because I don’t think this labeling should matter much.”).
40
   Pittston Co. v. United States, 

 (4th Cir. 2004).
41
   See Schechter Poultry, 

; Pittston, 

.
42
   Carter v. Carter Coal Co., 

 (1936); cf. Schechter
Poultry, 

 (“But would it be seriously contended that
Congress could delegate its legislative authority to trade or industrial
associations or groups so as to empower them to enact the laws they
deem to be wise and beneficent for the rehabilitation and expansion
of their trade or industries? . . . The answer is obvious. Such a
delegation of legislative power is unknown to our law and is utterly
inconsistent with the constitutional prerogatives and duties of
Congress.”).
43
   Lebron v. National Railroad Passenger Corp., 

(1995).
                                 12
    To be sure, private actors can sometimes play a small role
in enforcing the law when they are closely controlled.44 But
private actors may not exercise so much power that they
function as the government itself.45 The government “may
employ private entities for ministerial or advisory roles, but it
may not give these entities governmental power over others,”
at least not when the private office is “continuing and
permanent.”46

                                  B

    FINRA is likely a private entity exercising significant
executive authority. If so, FINRA subverts the constitutional
design.




44
   Sunshine Anthracite Coal Co. v. Adkins, 

 (1940)
(private entities must always “function subordinately” to the agency
and under that agency’s “authority and surveillance”); Association of
American Railroads v. U.S. Department of Transportation (“Amtrak
I”), 

 (D.C. Cir. 2013) (private entities may “help a
government agency make its regulatory decisions”), vacated and
remanded on other grounds sub nom. Department of Transportation
v. Association of American Railroads, 

 (2015) (“Amtrak
II”).
45
   United States v. Ackerman, 

 (10th Cir. 2016)
(“when an actor is endowed with law enforcement powers beyond
those enjoyed by private citizens, courts have traditionally found the
exercise of the public police power engaged”).
46
   First quoting Pittston, 

; then quoting Lucia, 

 (quoting United States v. Germaine, 

(1879)).
                                13
                                 1

    FINRA is a Delaware corporation, but it wields the
significant executive authority that the Constitution vests in the
Executive Branch alone.

     Start by considering some of the actions FINRA may take,
all without government oversight:

     •   Open an investigation;47
     •   Demand to inspect books, records, or accounts;48
     •   Require a brokerage employee to provide information
         orally, in writing, or electronically;49
     •   Require an employee to testify under oath;50
     •   Exercise prosecutorial discretion to choose formal
         disciplinary action instead of informal disciplinary
         action or to choose no action at all;51

47
   Jessica Hopper, Working on the Front Lines of Investor Protection
– How an Enforcement Action Becomes an Enforcement Action,
FINRA (June 4, 2020), https://perma.cc/N8ZB-8VCG (“FINRA
investigations are opened from various sources, including
examination findings, automated surveillance reports, filings made
with FINRA, customer complaints, tips, and referrals from other
regulators and FINRA departments.”).
48
   FINRA Rule 8210(a)(2).
49
   FINRA Rule 8210(a)(1).
50
   

51
   See FINRA Rule 9211(a); Schellenbach v. SEC, 

(7th Cir. 1993) (“[FINRA] disciplinary proceedings are treated as an
exercise of prosecutorial discretion.”); Wedbush Securities, Inc.,
Exchange Act Release No. 78568, 

, at *16 (Aug.
12, 2016) (“FINRA has broad prosecutorial discretion in deciding
                               14
   •   Authorize complaints against member broker-dealers;52
   •   Demand submission of trading data;53
   •   Negotiate settlements;54
   •   Require members to participate in live adjudicatory
       proceedings before an in-house tribunal;55
   •   Release, at its discretion, information related to
       disciplinary proceedings;56
   •   Impose the costs of the disciplinary proceeding on the
       disciplined member as FINRA “deems fair and
       appropriate”;57
   •   Issue large fines;58 and
   •   Expel a firm from FINRA and (in effect) from the
       securities industry, for violation of federal securities



against whom charges should be brought and what those charges
should be.”); Hopper, Working on the Front Lines; Enforcement,
FINRA, https://perma.cc/G7RV-7J9N (“If it appears that rules have
been violated, Enforcement will determine whether the conduct
merits formal disciplinary action.”).
52
   FINRA Rule 9211(b).
53
   FINRA Rules 8211, 8213.
54
   FINRA Rule 9270.
55
   FINRA Rules 9221(b), 9231, 9235.
56
   FINRA Rule 8313.
57
   FINRA Rule 8330.
58
   See, e.g., News Release, FINRA, FINRA Orders Record Financial
Penalties Against Robinhood Financial LLC (June 30, 2021),
https://perma.cc/2KC4-EJZS (FINRA “fined Robinhood Financial
LLC $57 million and ordered the firm to pay approximately $12.6
million in restitution, plus interest”).
                                 15
        laws, federal regulations, or FINRA rules, or for failure
        to “promptly” pay a fine, sanction, or cost.59

     Put simply, for brokers required (by statute) to join a
securities association, FINRA operates as the “principal
decisionmaker in the use of federal power.”60 That’s because
it enforces federal law and rules that carry the force of law.61
And it does so without any initial approval from its supposed
supervisor, the SEC. This “especially provocative exercise of
governmental power by a private organization” transgresses
the private nondelegation doctrine.62




59
   FINRA Rule 8320(c); see also FINRA Rule 8310(a).
60
   Oklahoma v. United States, 

, 229 (6th Cir. 2023).
61
    In this context, the relevant actions include both traditional
enforcement tools and the quasi-judicial functions that the Supreme
Court has said that an executive branch agency may perform without
exercising the judicial power. Adkins, 

. The
Constitution, of course, does not tolerate delegations of judicial
power any more than it does delegations of executive or legislative
power. Buckley, 

 (1976) (quoting J.W. Hampton, Jr.,
& Co. v. United States, 

 (1928)) (“in the actual
administration of the government Congress or the Legislature should
exercise the legislative power, the President or the State executive,
the Governor, the executive power, and the Courts or the judiciary
the judicial power”).
62
   1 Kenneth Culp Davis, Administrative Law Treatise 141 (1st ed.
1958)).
   Unlike a congressional delegation of legislative power to the
executive branch, a delegation of executive power to a private entity
cannot be saved by an “intelligible principle.” See Amtrak I, 

 (“Even an intelligible principle cannot rescue a statute
empowering private parties to wield regulatory authority.”).
                                   16
                                    2

     FINRA attempts to avoid this conclusion by suggesting
that any private nondelegation problem posed by FINRA’s
enforcement powers are solved by SEC review because, at the
very end of the process, the SEC can reverse a sanction that
FINRA imposes. But reversal of the sanction does not negate
the vast array of powers that FINRA exercises before the matter
even reaches the SEC.

     Moreover, FINRA’s insistence that SEC review cures its
constitutional defect is impossible to reconcile with Lucia v.
SEC. The Supreme Court held in Lucia that the SEC’s
administrative law judges are “Officers of the United States”
who must be properly appointed and removable, regardless of
the SEC’s ability to review their decisions.63 There is no reason
to think that nearly identical hearing officers who are private,
rather than governmental, can enjoy the same degree of
authority without (at least) the same restrictions. That would
mean that the Constitution requires less accountability when
significant executive authority is delegated outside the
executive branch than when such authority is delegated within
it.

     Even putting Lucia aside, consider FINRA’s power to
initiate an enforcement action that may expel a company from
the securities industry with the force of law. The problem?
That’s the power to decide “whether to take enforcement
actions against violators of federal law,”64 and it is among “the
greatest unilateral powers a President possesses under the



63
     See Lucia, 

.
64
     United States v. Texas, 

, 1975 (2023).
                                  17
Constitution.”65 Only the President can decide “how to
prioritize and how aggressively to pursue legal actions against
defendants who violate the law.”66 FINRA, however, would
have us simply ignore that “aspect of the executive power.”67

      Also consider FINRA’s power to settle an enforcement
action.     Suppose, for example, that FINRA has been
investigating a company for about six years.68 Of course, the
investigation and enforcement proceedings have cost the
company significant time and resources. But finally, after six
years, FINRA and the company negotiate a deal: The company
can stay in business — for the price of a fine and a waiver of
its right to SEC review.

    That settlement would “constitute final disciplinary action
of FINRA.”69 But look at what’s missing. At no time was the
65
   In re Aiken County, 

 (D.C. Cir. 2013) (emphasis
removed and added); see also 

 (“Prosecutorial discretion
encompasses the Executive’s power to decide whether to initiate
charges for legal wrongdoing and to seek punishment, penalties, or
sanctions against individuals or entities who violate federal law.”).

 S. Ct. at 1971 (quoting TransUnion LLC v. Ramirez,

 (2021)); see also Buckley, 

 (“A
lawsuit is the ultimate remedy for a breach of the law, and it is to the
President, and not to the Congress, that the Constitution entrusts the
responsibility to ‘take Care that the Laws be faithfully executed.’”
(quoting U.S. Const. art. II, § 3)); United States v. Nixon, 

 (1974) (“the Executive Branch has exclusive authority and
absolute discretion to decide whether to prosecute a case”).

 S. Ct. at 1975.
68
   Six years is about the amount of time FINRA has been pursuing
Alpine, which by way of reference is also about the amount of time
Kenneth Starr investigated Bill Clinton added to the time Robert
Mueller investigated Donald Trump.
69
   FINRA Rule 9270(g).
                                18
SEC involved.70 Nor was any executive officer with a
commission from the President — just a Delaware corporation
enforcing federal law.71

     That illustrates a constitutionally significant difference
between rulemaking and enforcement. Rulemaking can
sometimes be properly supervised by final-stage review if the
review occurs before the rule takes effect.72 In contrast,
enforcement actions cannot be properly supervised by final-
stage review because severe restrictions on liberty can occur at
every step.73 So, for an enforcement action, the issue of when
oversight occurs is just as important as how much oversight
occurs.

                                C

   It is no solution to say FINRA is a “part of the
Government.”74 Classifying FINRA as a public agency might

70
   See 

(a) (authorizing petition for SEC review
only after final FINRA determination); 

 § 201.401(d) (granting
SEC discretion to stay final FINRA determinations but not pending
FINRA proceedings); cf. National Horsemen, 107 F.4th at 430 (a
private entity was not “subordinate to the agency” because, among
other things, its penalties were “not automatically stayed pending
appeal” to the agency).
71
   See National Horsemen, 107 F.4th at 430 (describing a similar
“settlement scenario”).
72
   Id. at 423-26.
73
   Id. at 430-31. But see id. at 433-35 & n. 20 (“express[ing] no
opinion on whether the SEC-FINRA relationship poses any
constitutional issues under the private nondelegation doctrine” but
distinguishing FINRA from the private regulatory body at issue in
that case).
74
   Amtrak II, 135 S. Ct. at 1253.
                                  19
solve its private nondelegation problem, but it runs headlong
into the rest of the Constitution.

     To start, FINRA probably is not part of the government. It
was not created by the government. It is not controlled by the
government. It is not funded by the government. All these
facts point in the same direction: FINRA is a private entity.75

     But even if we assume FINRA is a governmental entity,
Article II problems immediately arise because FINRA’s
hearing officers are indistinguishable from the administrative
law judges in Lucia and the special trial judges in Freytag.76
As such, hearing officers must be (1) properly appointed and
(2) removable by the President — two conditions hearing
officers cannot satisfy.



75
   See FINRA Br. at 2, 10 (FINRA is “a private corporation that the
government did not create and does not control” and “funded by
member fees and ‘fines, penalties, and sanctions levied against its
members’”); By-Laws of the Corporation, art. VI, § 1; see also Kim
v. FINRA, 

, 163 (D.D.C. 2023) (denying
preliminary injunction based on Article II claims in part “because
FINRA is likely not a state actor”).
76
   See Lucia, 

; Freytag v. Commissioner, 

 (1991).
   Indeed, FINRA’s able counsel conceded that FINRA hearing
officers exercise the same “significant authority” as the ALJs in
Lucia. Oral Arg. Tr. at 66 (“I agree [hearing officers] exercise the
same powers as SEC ALJs which in Lucia were found to exercise
significant authority pursuant to the laws of the United States.”); see
also id. at 69 (“[I]n Lucia, the Supreme Court identified four powers
that SEC ALJs exercised. Those four powers involved conducting
hearings, hearing witnesses, enforcing discovery orders. Those four
powers are also exercised by FINRA Hearing Officers.”).
                                 20
     As in Lucia and Freytag, FINRA’s hearing officers are
permanent employees in continuing offices exercising
“important functions” identified by the Supreme Court as
markers of “significant authority.”77 Hearing officers “have
authority to do all things necessary and appropriate to
discharge [their] duties,” which (as in Lucia and Freytag)
includes taking testimony, conducting trials, ruling on the
admissibility of evidence, and enforcing compliance with
discovery orders.78 And in performing these tasks, hearing
officers exercise a wide degree of discretion — a hallmark of
“significant authority.”79 In other words, as in Lucia and
Freytag, FINRA’s hearing officers possess “nearly all the tools
of federal trial judges.”80

     The upshot is this: If FINRA is part of the government,
then hearing officers are “Officers of the United States,”81 and
that means they must be appointed directly by the President,
courts of law, or heads of departments — like the officials in
Lucia and Freytag.82 In addition, they can’t be insulated from
presidential removal by more than one level of for-cause
removal restrictions.83


77
   Freytag, 

 (second part quoting Buckley, 

.).
78
    FINRA Rule 9235(a); see also FINRA Rule 9280; FINRA
Rule 9260 et seq.
79
   Freytag, 

.
80
   See Lucia, 

.
81
   Alpine also argued that members of FINRA’s Board of Governors
are “Officers of the United States.” Alpine Br. at 46. I’ll leave that
issue for another day.
82
   See Lucia, 

.
83
   Free Enterprise Fund v. Public Company Accounting Oversight
Board, 

, 514 (2010).
                                  21
    FINRA’s hearing officers violate both these principles.
They are (presumably) appointed by FINRA,84 not the SEC.
And they have multiple layers of tenure protection.
Specifically, hearing officers can be removed only by the
FINRA CEO,85 who in turn can be removed only for good
cause by the SEC Commissioners,86 who themselves are
understood to be removable by the President only for good
cause.87

                                     

   In short, Congress requires FINRA to “enforce” both its
own rules and federal securities law, without adequate control


84
   The record does not reveal the precise mechanism by which
hearing officers are appointed, but the corporate bylaws provide that
FINRA Regulation, Inc., the subsidiary of FINRA that is responsible
for enforcement functions, “may employ such agents and employees
as the Board may deem necessary or advisable.” By-Laws of FINRA
Regulation, Inc., FINRA, art. 7, § 7.3, https://perma.cc/GS25-29PZ.
85
   Office of Hearing Officers, FINRA, https://perma.cc/VM5D-7RP2
(“[E]mployment protections exist for Hearing Officers to further
ensure their independence. Only FINRA’s Chief Executive Officer
can terminate a Hearing Officer, and the termination can be appealed
to the Audit Committee of FINRA’s Board of Governors.”).
86
   15 U.S.C. § 78s(h)(4)(B).
87
   The Supreme Court has not expressly held that SEC
commissioners are subject to tenure protection but decided Free
Enterprise Fund “with that understanding.” See 561 U.S. at 487
(“The parties agree that the Commissioners cannot themselves be
removed by the President except under the Humphrey’s Executor
standard of ‘inefficiency, neglect of duty, or malfeasance in
office . . . .’”); see also Jarkesy v. SEC, 

, 464 (5th Cir.
2022) (“SEC Commissioners may only be removed by the President
for good cause.”).
                               22
by the President.88 That arrangement violates the Constitution.
Alpine has therefore demonstrated a strong likelihood of
success on the merits.

                               IV

    Alpine has also shown that the denial of a preliminary
injunction will likely cause irreparable harm.

    Irreparable harm has two components. The asserted injury
must be certain and imminent.89 And it must be something that
can’t later be fixed by “adequate compensat[ion] or other
corrective relief.”90

     The Supreme Court’s recent decision in Axon Enterprise,
Inc. v. FTC tells us that Alpine faces certain and imminent harm
that cannot later be fixed.91 There, as here, the regulated party
challenged the constitutionality of an enforcement action
because the decisionmakers were “insufficiently accountable
to the President.”92 There, as here, the regulated party objected
to the “harm” of “being subjected” to an “unconstitutional . . .




88
   15 U.S.C. § 78o-3(b)(2) (one of many requirements for FINRA to
be recognized as a registered securities association).
89
   Chaplaincy of Full Gospel Churches v. England, 

 (D.C. Cir. 2006).
90
   

 at 297-98 (quoting Wisconsin Gas Co. v. FERC, 

,
674 (D.C. Cir. 1985)).
91
   

, 903-04 (2023).
92
    

 (“Both respondents claim that the agencies’
administrative law judges (ALJs) are insufficiently accountable to
the President, in violation of separation-of-powers principles.”).
                                  23
proceeding by an unaccountable” decisionmaker.93 And there,
as here, being subjected “to an illegitimate proceeding, led by
an illegitimate decisionmaker” was “a here-and-now injury”
that “is impossible to remedy once the proceeding is over”
because a “proceeding that has already happened cannot be
undone.”94

     To be sure, Axon was answering a question about whether
a district court had jurisdiction, not whether a court should
grant a preliminary injunction.95 But I struggle to see how an
injury that is completely “impossible to remedy” (the standard
there) meaningfully differs from an injury that is “beyond
remediation” (the standard here).96 When likely to succeed in
a challenge to enforcement proceedings based on the
Appointments Clause or the President’s removal power, a party
has the “right[ ] not to undergo the complained-of agency
proceedings,” which according to Axon are “impossible to
remedy once the proceeding is over.”97 Nothing about Axon’s
reasoning limits that fundamental legal principle to a
defendant’s motion to dismiss for lack of jurisdiction or
excludes it from applying to a plaintiff’s motion for a
preliminary injunction.

    None of this means that “every agency proceeding already
underway must immediately be halted because of an asserted

93
   

 at 903 (quoting Brief for Petitioner at 36, Axon Enterprise, Inc.
v. FTC, 

 (2023) (No. 21-86), 

, at
*36).
94
   

 (emphasis added) (second part quoting Seila Law,

).
95
   Majority Op. at 37.
96
   First quoting Axon, 143 S. Ct. at 903; then quoting Chaplaincy of
Full Gospel Churches, 

.
97
   Axon, 143 S. Ct. at 903-04.
                                  24
constitutional flaw.”98 The movant must show, among other
things, a likelihood of success on the merits. So assuming that
most administrative agencies are structured in a way that
complies with the Constitution, there will be no wave of
preliminary injunctions.99

    The majority cites a handful of our circuit’s cases for the
proposition that a separation-of-powers violation alone is not
enough for irreparable harm: Deaver v. Seymour; In re
al-Nashiri; and John Doe v. CFPB.100 But none of these cases
supplies a rule that controls this case.101

     First — in Deaver v. Seymour, former presidential aide
Michael Deaver asked the court to enjoin an independent
counsel from indicting him. He argued that the independent
counsel’s appointment was unconstitutional.102 This court
declined to enjoin the indictment.103 It reasoned in part that
Deaver could “move to dismiss the charges under Federal Rule
of Criminal Procedure 12(b)(1) for ‘defects in the institution of
the prosecution.’”104


98
   Majority Op. at 38.
99
    And even if there were a wave, the “fact that a given law or
procedure is efficient, convenient, and useful in facilitating functions
of government, standing alone, will not save it if it is contrary to the
Constitution.” Free Enterprise Fund, 561 U.S. at 499 (quoting
Bowsher v. Synar, 

 (1986)).
100
    Majority Op. at 32-35.
101
     Alpine had no need to address Deaver, al-Nashiri, or John
Doe — FINRA did not rely on them, and they do not control this
case. But see Majority Op. at 35.
102
    

 (D.C. Cir. 1987).
103
    

.
104
    See 

.
                                   25
     Deaver is not on point. It depended on the Federal Rules
of Criminal Procedure, criminal-law precedents, equity’s
interaction with criminal proceedings, and the collateral-order
exception to the final-judgment rule. Today’s case involves
none of those topics.105

     Absent Axon, perhaps Deaver would provide some
guidance. But Axon stands for the very proposition that the
majority says Deaver rejects. And if forced to choose between
the two, I’ll take Axon — a Supreme Court case from last year
that involved a civil enforcement proceeding like today’s case
— over a circuit case from 37 years ago that involved a
criminal prosecution unlike today’s case.

    Second — in al-Nashiri, a detainee at Guantanamo Bay
sought mandamus relief from a military commission
proceeding.106 Even at first blush, the differences in the cases
are apparent. Mandamus relief and preliminary injunctions
have different standards because they serve distinct
functions.107 And the military’s critical role requires insulation

105
     Despite its differences with today’s case, Deaver ended up
promising something like what Alpine is seeking — the opportunity
to obtain relief from a district court (there, a 12(b)(1) dismissal; here,
a preliminary injunction) before being subjected to proceedings
involving someone unconstitutionally appointed (there, a prosecutor;
here, a hearing officer). 

. To be sure, in a line of dicta,
the court speculated that it would not consider a future appeal if the
district court denied Deaver’s 12(b)(1) motion. 

. But
today’s challenge to a civil enforcement proceeding does not turn on
dicta about the application of criminal-procedure rules to a
hypothetical appeal.
106
    

 (D.C. Cir. 2015).
107
    Compare 

 (a writ of mandamus under 

(a)
serves the “traditional function of confining a court to its prescribed
jurisdiction” (cleaned up)), with Chaplaincy of Full Gospel
                                   26
from interference by the judicial and legislative branches — a
principle the Supreme Court has upheld time and again.108 The
mandamus posture and military nature of the case make al-
Nashiri inapposite.

     Third — in John Doe, a party regulated by the Consumer
Financial Protection Bureau sought a preliminary injunction to
halt a CFPB investigation.109 Over a dissent from then-Judge
Kavanaugh, an emergency panel denied the requested relief in
a non-precedential order.110 It stated that a separation-of-
powers violation is “not invariably an irreparable injury.”111

    If John Doe had been issued as a published opinion, or if
the panel had later designated it for publication, stare decisis
would require us to abide by its holding. But John Doe is an
unpublished order.112 That means it is “not suitable for


Churches, 

 (“The purpose of a preliminary injunction
is merely to preserve the relative positions of the parties until a trial
on the merits can be held.” (quoting University of Texas v.
Camenisch, 

 (1981))).
108
    See e.g., Department of Navy v. Egan, 

 (1988)
(“unless Congress specifically has provided otherwise, courts
traditionally have been reluctant to intrude upon the authority of the
Executive in military and national security affairs”).
109
    John Doe Co. v. CFPB, 

 (D.C. Cir. 2017).
110
    

.
111
    

112
    Review of the docket confirms this. See Order, John Doe v.
CFPB, No. 17-5026 (D.C. Cir. Mar. 3, 2017).
   Courts use the terms “published” and “unpublished” as terms of art
to distinguish between (a) precedential opinions and (b) simple
orders that do not bind future panels. It does not matter that West
Publishing later put John Doe’s unpublished order in the Federal
Reporter, without instruction from this court. Indeed, it would be
                                 27
governing future cases” and does “not constrain a panel of the
court from reaching a contrary conclusion in a published
opinion after full consideration of the issue.”113

     Reliance on the (non-binding) order in John Doe is all the
more curious considering that the John Doe dissent reads like
a preview of Axon. Just as Axon held that it “impossible to
remedy” the harm of “being subjected” to an
“unconstitutional . . . proceeding by an unaccountable”
decisionmaker “once the proceeding is over,”114 the dissent in
John Doe argued: “Irreparable harm occurs almost by
definition when a person or entity demonstrates a likelihood
that it is being regulated on an ongoing basis by an
unconstitutionally structured agency that has issued binding
rules governing the plaintiff’s conduct and that has authority to
bring enforcement actions against the plaintiff.”115

ironic to allow the decision of a private corporation like West to
determine the outcome of a case about whether FINRA is a private
corporation executing federal law.
   It also does not matter that other panels have cited John Doe “for
seven years.” Majority Op. at 36. Courts are free to cite dissents,
essays, articles, books, and many other forms of persuasive (but non-
binding) authority. And sometimes a precedential opinion will even
adopt as its holding the reasoning of a nonprecedential authority. But
that’s not what happened to John Doe. The majority has not cited a
single precedential opinion that incorporated John Doe’s reasoning
into its holding. If a precedential opinion had done so, then the
majority could simply rely on the holding of that precedential
opinion without having to rely on John Doe. In other words, the
majority’s dependence on John Doe is itself evidence that no
precedential opinions of our court have held what John Doe held.
113
    In re Grant, 

 (D.C. Cir. 2011) (cleaned up);
see also D.C. Cir. Rule 36(c)(2), (e)(2).
114
    Axon, 143 S. Ct. at 903.
115
    John Doe, 

 (Kavanaugh, J., dissenting).
                                  28

                                  V

     The two remaining preliminary injunction factors also
favor Alpine. “The public interest is not served by letting an
unconstitutional[ ]” entity “continue to operate” and persist in
violating a business’s rights.116 And the demonstrated
violation of Alpine’s constitutional rights tips the balance of
equities in its favor, even if FINRA’s enforcement goals will
be impeded until the close of the collateral litigation.117 Alpine
has therefore shown both that the issuance of its requested
injunction is “in the public interest” and that the “balance of
equities tips” in its favor.118

                             *    *    *

     FINRA relies on a Goldilocks defense. It is too much like
a private entity for Article II’s strictures, yet too much like the
government for the private nondelegation doctrine to apply.119
But FINRA “cannot have its cake and eat it too.”120 Its split

116
    See 

.
117
    See 

118
    Winter, 

.
119
    Compare FINRA Br. at 2 (arguing that the Constitution’s
appointment and removal requirements can’t apply to FINRA
because it is “a private corporation that the government did not create
and does not control” (emphasis added)), with id. at 3-4 (“FINRA’s
rulemaking and disciplinary powers are subject to extensive SEC
oversight, and thus satisfy the private nondelegation doctrine.”
(emphasis added)).
120
    Amtrak I, 721 U.S. at 676.
   FINRA frequently seeks benefits traditionally reserved for the
government, such as immunity from suit and compliance with its
rules under the force of law. See, e.g., Gallagher v. FINRA, No. 21-
                               29
identity fails to provide the accountability required by our
Constitution. When federal law empowers officials to decide
a company’s fate, they must be Officers of the United States,
selected through the Constitution’s Appointments Clause and
properly removable by the President.

    The district court erred when it held otherwise. Because
the majority correctly enjoins FINRA from unilaterally
expelling Alpine and destroying its business, I concur in that
part of its judgment. But I respectfully dissent from the
majority’s decision not to enjoin the expedited enforcement
proceeding in its entirety.




13605, 

, at *2-3 (11th Cir. June 3, 2022) (granting
FINRA immunity from suit because it was acting “under its
delegated authority”); FINRA’s Motion to Dismiss at 4, Empire
Financial Group, Inc. v. FINRA, No. 9:08-cv-80534-KLR, 

 (S.D. Fla. May 21, 2008), ECF No. 2 (“Once approved by
the SEC, FINRA rules enjoy the status of federal law.”).