Crypto won big in the Supreme Court’s Loper Bright decision


What do fishing boats, truck stops, and the Securities and Exchange Commission (SEC) have to do with each other? Quite a bit if you have been following recent decisions from the Supreme Court of the United States (SCOTUS). 

In what is shaping up to be a watershed moment for the federal government’s power to regulate tech startups, SCOTUS handed down a June 28 decision — Loper Bright Enterprises v. Raimondo — that created two new ways to challenge federal agencies that have tried to expand their reach to crypto.

For years, crypto startups have been struggling to get out of a regulatory gray area. Agencies such as the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), and the Treasury Department have all undertaken efforts to extend their reach into this rapidly evolving industry. Most startups face a barrage of compliance challenges, and crypto has perhaps faced the most.

Related: Only Donald Trump can save crypto from Joe Biden

For example, startups driving decentralized finance (DeFi) face a mix of poor incentives and backward defaults in the regulatory landscape. While DeFi could radically improve financial access for the unbanked and transform our financial system, regulators have no idea how to classify DeFi services. Sometimes they are treated like traditional financial products. Sometimes they aren’t. And this uncertainty makes it difficult for DeFi startups to operate compliantly. All of the growth and innovation in this space has been in spite of these headwinds.

The opening page of Loper Bright Enterprises v. Raimondo.

And for decades, federal courts’ default position was to never second guess the agencies when they are interpreting unclear statutes. This default, known as “Chevron deference,” meant that courts for example would defer to the Treasury Department’s interpretations of ambiguities in the Bank Secrecy Act whether or not the court agreed with the interpretation.

This is all about to change.

In 2020, Atlantic herring fishermen sued the Department of Commerce because the agency was forcing them to pay for costly and ineffective monitoring programs that Congress did not explicitly authorize. SCOTUS used its June 28 decision — in a case called Loper Bright Enterprises v. Raimondo — to blow up Chevron deference and shift toward more defined and limited regulatory powers within federal agencies. Going forward, courts are no longer bound to what agency bureaucrats decide. Instead, federal agencies must now persuade courts that they are correct just like everyone else.

An excerpt from Justice Neil Gorsuch’s concurrence in Loper Bright Enterprises v. Raimondo. Source: X

Although Loper Bright changed how agencies can make regulations, it left room for agencies to enforce long-standing regulations that had not been successfully challenged within the statute of limitations. Federal law sets a six-year deadline for broad challenges to regulations. For more than 50 years, courts have interpreted the statute of limitations to begin when the rule was published.

For crypto startups, that means that they only get their day in court if someone else has gotten their day in court within that time limit. For example, it was nearly impossible for a company today to challenge a regulation being enforced by a federal agency that was published 30 years ago.

Related: From Louisiana to New Hampshire, crypto advocates are winning

However, SCOTUS clarified in a July 1 decision when the six-year limit begins. A truck stop in North Dakota wanted to challenge the rules around merchant fees on debit card transactions. However, it did not open its doors until 2018 and, under the previous interpretation of the statute of limitations, it had missed the six-year window to challenge these Dodd-Frank rules by 2017.

In siding with the truck stop, in Corner Post Inc. v. Board of Governors of the Federal Reserve System, SCOTUS held that the six-year limitation did not begin when the rule was published in 2011 but when the truck stop started accepting debit cards when it opened for business in 2018. This is a major win for startups facing what had otherwise been settled regulatory environments.

In fact, these two decisions combined will heavily favor new challenges to federal regulations. Startups should seize this moment. SCOTUS may have been looking at truck stops and fishing boats, but it gave powerful new tools to push back against unwarranted regulatory creep for startups everywhere.

The ink has barely dried on these two landmark decisions, and the long-term impacts are far from settled. Now is the time to shape the legacy of these cases to benefit not only crypto but also the innovative startups that will drive us into the future.

Christopher Koopman is a guest columnist for Cointelegraph and the CEO of the Abundance Institute. He was previously the executive director at the Center for Growth and Opportunity at Utah State University, and a senior research fellow and director of the technology policy program at the Mercatus Center at George Mason University. He is currently a senior affiliated scholar with the Mercatus Center and a member of the IT and Emerging Technology Working Group at the Federalist Society’s Regulatory Transparency Project.

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.

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