Ripple Effect: The SEC’s Major Questions Doctrine Problem

May 1, 2023

Crypto assets and blockchain technology have the potential to create unprecedented equitable access to financial institutions.  Despite this potential, there is a robust debate regarding federal agencies’ jurisdiction over the novel asset class.  Without clear statutory guidelines, federal agencies have been forced to resolve this debate through the rulemaking process.  However, agency rules regarding jurisdiction over crypto assets could be scrutinized by a reviewing court under the major questions doctrine.  Once highly deferential to agency rules, the U.S. Supreme Court in recent terms has repeatedly struck down agency rules when an agency claims an unheralded power to regulate an issue of deep economic and political significance.  The U.S. Securities and Exchange Commission (SEC) arguably claims such a power by interpreting most crypto assets to be “investment contracts” and thus under SEC jurisdiction.  But although a decision on major questions doctrine grounds in the high-profile case SEC v. Ripple Labs, Inc. could help clarify how we classify crypto assets, it leaves many jurisdictional questions unanswered and could complicate the application of the SEC’s disclosure regime to risky crypto asset offerings.  This Note argues that Congress should pass the Lummis-Gillibrand Responsible Financial Innovation Act to create joint jurisdiction between the SEC and the Commodities Futures Trading Commission over most crypto asset offerings to balance consumer protection and innovation at the frontier of financial innovation.  This Note also endorses a new standard to evaluate whether a crypto asset is sufficiently decentralized to further clarify the SEC’s role in regulating crypto asset offerings.

May 2023

No. 6