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The Supreme Court could stop the SEC’s war on crypto

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Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are among a group on the Supreme Court who may not smile upon the SEC’s interpretation of the law.

When the leaders of the American Revolution signed the Declaration of Independence on July 4, 1776, they had no guarantee of victory. The battle for independence was underway, and their prospects were uncertain. Despite occasional victories, these audacious freedom fighters were grossly outnumbered and had difficulty retaining volunteer soldiers. Their commitment to the cause of freedom was their only fighting chance.

Cryptocurrency as an open-source software industry is in a similar predicament. The United States Securities and Exchange Commission and banking regulators are trying to dismantle this budding industry, brandishing lawsuits and an intimidating array of regulatory measures designed to make compliance impossible.

Crypto’s fighting chance is embedded within the very words and legal principles put forth by America’s founders in the Constitution. They designed the Constitution on the principle of the separation of powers inspired by the Enlightenment. Their vision was of a system with three separate but coequal branches of government, each acting as a safeguard against the potential abuse of power by the others.

Coinbase stands at the vanguard in the modern battlefield of cryptocurrency as it stares down a lawsuit brought by the SEC. In June, the company delivered a declaration in response to the lawsuit that leans on the “major questions doctrine.” This essential legal principle holds agencies like the SEC accountable when they circumvent Congress’ role in our constitutional structure and manipulate vague and antiquated statutes for their own ends.

Related: Elizabeth Warren wants the police at your door in 2024

In recent landmark cases that curbed executive overreach in both the Obama and Biden administrations, the Supreme Court has underscored the importance of the major questions doctrine. This doctrine underlines the crucial point that when agencies attempt to regulate questions of significant national or political importance, they must have explicit authorization from Congress.

This doctrine is not new nor untested. When the Food and Drug Administration (FDA) attempted to regulate cigarettes, justifying action by defining them under the FDA’s authority over drugs, the Supreme Court struck down the agency’s overreach. The court pointed out that nicotine, while technically a drug, did not fall under the palliative class of drugs Congress had intended when creating the FDA.

A similar verdict was reached regarding the Environmental Protection Agency’s (EPA) attempt to regulate carbon emissions. The EPA was prevented from broadening its mandate over power plant pollution to set a national policy on carbon emissions, which was beyond its remit and would usurp the role of the legislature.

The Supreme Court’s decision striking down Biden’s student loan forgiveness program is the most recent invocation of the major questions doctrine. Coinbase general counsel Paul Grewal astutely observed that one could substitute crypto for student loans in the court’s ruling and envision a similar outcome.

Actually, it’s far worse. The “economic and political significance” of falsely claiming authority over all digital assets other than BTC is not just “staggering,” but untethered to the fundamental requirement that there be enforceable rights between enterprise and purchaser. 2/3

— paulgrewal.eth (@iampaulgrewal) July 4, 2023

SEC Chairman Gary Gensler’s apologists argue that the securities laws from the 1930s have successfully adapted to the internet era, hence they can adapt to crypto as well. This argument would carry weight if the SEC made similar adaptations to crypto as they did to the internet.

Over the years, the SEC has proven its capacity to evolve, allowing prospectus delivery over the internet and sanctioning executive communications through social media. But when it comes to crypto, the SEC stubbornly insists that developers must comply with laws that, without nuanced adaptation, are impossible to adhere to.

This grudging approach of “just come in and register” while blatantly ignoring the numerous questions raised in Coinbase’s 2022 request for rulemaking is exactly why the major questions doctrine — as interpreted by Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — is so relevant to the SEC’s approach to crypto regulation. The doctrine acts as a constitutional compass, guiding the direction of authority, and restraining overreach by various agencies.

Related: Gary Gensler is hurting the little guys for Wall Street

The framers of the Constitution left us an arsenal of tools to wage a revolution for freedom within the design of the U.S. Constitution. Legal scholars and constitutionalists, including Gorsuch, are reviving the founders’ vision of a delicate balance of power among the three branches with the major questions doctrine.

Crypto defendants, such as Coinbase, Ripple and Binance, are pioneering a revolution of their own. They are at the forefront of a movement aiming to decentralize power, shifting it from centralized institutions to the hands of individuals. In their struggle, they are armed with the very same tools our founders used to shape this nation.

There’s a striking parallel between our founders’ fight for political freedom and the current struggle for financial freedom in the digital realm. The underpinnings of both these movements are deeply rooted in a quest for autonomy and liberty.

J.W. Verret is an associate professor at George Mason University’s Antonin Scalia Law School. He is a practicing crypto forensic accountant and also practices securities law at Lawrence Law LLC. He is a member of the Financial Accounting Standards Board’s Advisory Council and a former member of the SEC Investor Advisory Committee. He also leads the Crypto Freedom Lab, a think tank fighting for policy change to preserve freedom and privacy for crypto developers and users.

This article is for general information purposes and is not intended to be and should not be taken as legal or investment advice. The views, thoughts and opinions expressed here are the author’s alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.

Source

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  • 14.10.25 08:46 robertalfred175

    CRYPTO SCAM RECOVERY SUCCESSFUL – A TESTIMONIAL OF LOST PASSWORD TO YOUR DIGITAL WALLET BACK. My name is Robert Alfred, Am from Australia. I’m sharing my experience in the hope that it helps others who have been victims of crypto scams. A few months ago, I fell victim to a fraudulent crypto investment scheme linked to a broker company. I had invested heavily during a time when Bitcoin prices were rising, thinking it was a good opportunity. Unfortunately, I was scammed out of $120,000 AUD and the broker denied me access to my digital wallet and assets. It was a devastating experience that caused many sleepless nights. Crypto scams are increasingly common and often involve fake trading platforms, phishing attacks, and misleading investment opportunities. In my desperation, a friend from the crypto community recommended Capital Crypto Recovery Service, known for helping victims recover lost or stolen funds. After doing some research and reading multiple positive reviews, I reached out to Capital Crypto Recovery. I provided all the necessary information—wallet addresses, transaction history, and communication logs. Their expert team responded immediately and began investigating. Using advanced blockchain tracking techniques, they were able to trace the stolen Dogecoin, identify the scammer’s wallet, and coordinate with relevant authorities to freeze the funds before they could be moved. Incredibly, within 24 hours, Capital Crypto Recovery successfully recovered the majority of my stolen crypto assets. I was beyond relieved and truly grateful. Their professionalism, transparency, and constant communication throughout the process gave me hope during a very difficult time. If you’ve been a victim of a crypto scam, I highly recommend them with full confidence contacting: 📧 Email: [email protected] 📱 Telegram: @Capitalcryptorecover Contact: [email protected] 📞 Call/Text: +1 (336) 390-6684 🌐 Website: https://recovercapital.wixsite.com/capital-crypto-rec-1

  • 15.10.25 18:07 crypto

    Cryptocurrency's digital realm presents many opportunities, but it also conceals complex frauds. It is quite painful to lose your cryptocurrency to scam. You can feel harassed and lost as a result. If you have been the victim of a cryptocurrency scam, this guide explains what to do ASAP. Following these procedures will help you avoid further issues or get your money back. Communication with Marie ([email protected] and WhatsApp: +1 7127594675) can make all the difference.

  • 15.10.25 21:52 harristhomas7376

    "In the crypto world, this is great news I want to share. Last year, I fell victim to a scam disguised as a safe investment option. I have invested in crypto trading platforms for about 10yrs thinking I was ensuring myself a retirement income, only to find that all my assets were either frozen, I believed my assets were secure — until I discovered that my BTC funds had been frozen and withdrawals were impossible. It was a devastating moment when I realized I had been scammed, and I thought my Bitcoin was gone forever, Everything changed when a close friend recommended the Capital Crypto Recover Service. Their professionalism, expertise, and dedication enabled me to recover my lost Bitcoin funds back — more than €560.000 DEM to my BTC wallet. What once felt impossible became a reality thanks to their support. If you have lost Bitcoin through scams, hacking, failed withdrawals, or similar challenges, don’t lose hope. I strongly recommend Capital Crypto Recover Service to anyone seeking a reliable and effective solution for recovering any wallet assets. They have a proven track record of successful reputation in recovering lost password assets for their clients and can help you navigate the process of recovering your funds. Don’t let scammers get away with your hard-earned money – contact Email: [email protected] Phone CALL/Text Number: +1 (336) 390-6684 Contact: [email protected] Website: https://recovercapital.wixsite.com/capital-crypto-rec-1

  • 15.10.25 21:52 harristhomas7376

    "In the crypto world, this is great news I want to share. Last year, I fell victim to a scam disguised as a safe investment option. I have invested in crypto trading platforms for about 10yrs thinking I was ensuring myself a retirement income, only to find that all my assets were either frozen, I believed my assets were secure — until I discovered that my BTC funds had been frozen and withdrawals were impossible. It was a devastating moment when I realized I had been scammed, and I thought my Bitcoin was gone forever, Everything changed when a close friend recommended the Capital Crypto Recover Service. Their professionalism, expertise, and dedication enabled me to recover my lost Bitcoin funds back — more than €560.000 DEM to my BTC wallet. What once felt impossible became a reality thanks to their support. If you have lost Bitcoin through scams, hacking, failed withdrawals, or similar challenges, don’t lose hope. I strongly recommend Capital Crypto Recover Service to anyone seeking a reliable and effective solution for recovering any wallet assets. They have a proven track record of successful reputation in recovering lost password assets for their clients and can help you navigate the process of recovering your funds. Don’t let scammers get away with your hard-earned money – contact Email: [email protected] Phone CALL/Text Number: +1 (336) 390-6684 Contact: [email protected] Website: https://recovercapital.wixsite.com/capital-crypto-rec-1

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