Coinbase’s contention in that paper, released last Thursday, is all-encompassing: The major questions doctrine, according to Coinbase counsel at Sullivan & Cromwell, “forecloses” regulation of the trillion-dollar crypto industry.
And unless the SEC changes course and opts not to bring an enforcement action against the exchange, Coinbase warned, the company intends to force the major questions issue to be decided by a court, with potentially disastrous consequences for the agency. And finally, the SEC implied, there is a disconnect in the crypto industry’s arguments. Many crypto groups, the SEC said, have blasted the agency for failing to issue crypto-specific rules and regulations and instead using case-by-case enforcement actions to set crypto policy. But if these groups are right about the ramifications of the Supreme Court’s major questions doctrine, the agency suggested, then the SEC is precluded from issuing those very rules without a Congressional mandate.