Oct. 23, 2023
Textualist and originalist judicial philosophies could pose hurdles for SEC cryptocurrency regulations that go beyond explicit statutory authority. A few reasons why: Textualism focuses on plain or original public meaning of constitutional/statutory text - so new SEC rules without clear textual basis may be questioned. Originalism requires adhering closely to the original intent and understanding of provisions when adopted - a challenge for novel crypto issues. Conservative textualist/originalist judges likely to be skeptical of expansive agency power claims without express Congressional mandates. May reject analogizing crypto to securities if not explicitly mentioned in statutes or if analogies require stretching textual meaning. An originalist lens may not permit applying decades-old laws to recent technological innovations like crypto. Implicit powers to regulate crypto claimed by SEC unlikely to persuade textualist/originalist judicial review. So you're right - as currently constituted, the Supreme Court could strike down or narrow overbroad SEC crypto rules based on textualist/originalist theories limiting regulation without explicit statutory authorization. Sent with Proton Mail secure email.