Chevron Deference: 40-Year Decision Reversed & Explained | Justin Slaughter

This episode delves into the Supreme Court's recent decision to overturn the Chevron deference, a legal doctrine that has guided the interpretation of administrative agency actions for the past 40 years, and its implications for the crypto industry and broader regulatory landscape.

1. The Supreme Court's decision to overturn Chevron deference marks a significant shift in regulatory authority from agencies to courts.
2. This ruling could lead to more judicial scrutiny of administrative agency actions, particularly in emerging industries like cryptocurrency.
3. The decision may force Congress to take a more active role in legislating on complex issues, rather than relying on administrative agencies.
4. The crypto industry is directly impacted by this ruling, as it challenges the SEC's broad interpretation of its regulatory powers.
5. The ruling reflects broader political dynamics and concerns about the balance of power within the federal government.

1: Introduction and Sponsor Message

Overview of Chevron deference and its relevance to crypto. Discussion on sponsors Kraken and Uniswap. Quotes:

• "Make a list, nation. Have you heard about Chevron deference?"
• "It's so related to crypto that crypto and the SEC was even cited as evidence as to why Chevron deference needed to be overturned."

2: Historical Context and Justin Slaughter's Background

Justin Slaughter's career background and historical development of the administrative state. Quotes:

• "Our guest today is Justin Slaughter. He's policy director at Paradigm."
• "I first encountered the only digital asset at the time, bitcoin."

3: Chevron Deference and the Supreme Court Ruling

Detailed discussion of Chevron deference, its origins, and the recent Supreme Court decision. Quotes:

• "Chevron has become a tool of administrative overreach."
• "We think it is not based in the actual APA or the constitution."

4: Implications for Crypto and Regulatory Landscape

Analysis of how the ruling affects the crypto industry and potential shifts in regulatory practices. Quotes:

• "Crypto was part of this case. One of the arguments made by conservatives is that Chevron is pernicious."
• "This could trigger a sea change in all regulations, crypto and outside."

5: Future of Legislative and Regulatory Actions

Potential changes in legislative activities and the role of Congress in future regulations. Quotes:

• "All power flows from the ballot box in America."
• "We are headed west. This is the frontier."

1. Stay Informed: Keep abreast of changes in regulatory policies affecting your industry.
   • Implementation: Follow reliable news sources and industry reports.
2. Engage with Lawmakers: Advocate for clear and fair regulations in your industry.
   • Implementation: Participate in public comment periods and connect with industry advocacy groups.
3. Seek Legal Counsel: Consult with legal experts to navigate the evolving regulatory landscape.
   • Implementation: Retain a lawyer with experience in your industry.
4. Prepare for Enforcement Actions: Understand that agencies may increase enforcement actions in the absence of clear regulations.
   • Implementation: Conduct internal audits and compliance reviews regularly.
5. Support Legislative Efforts: Encourage proactive legislation that addresses new technologies and market realities.
   • Implementation: Engage with policymakers and support legislative initiatives.

Is the Chevron Deference case good for crypto? Is it good for the U.S.? Or is this a giant tradeoff that will lead to bad outcomes?

Crypto enthusiasts, pro-tech individuals, and those on the right say this will stop regulators from making random rules.

Non-crypto sources, mainstream media, and those on the left say it will lead to chaos, unchecked corporations, and poor governance.

So, what’s the truth? That’s what we’re here to find out. Our guest today is Justin Slaughter, current policy director at Paradigm and previous senior adviser of the SEC and chief policy adviser of the CFTC.

People

Justin Slaughter, Gary Gensler, Robert Jackson, Sharon Bowen

Companies

SEC, CFTC, Paradigm

Books

None

Guest Name(s):

Justin Slaughter

Content Warnings:

None

Speaker A
Make a list, nation. Have you heard about Chevron deference? That's one of the many Supreme Court cases that has gone around the news recently, and this one is very, very related to crypto. It's so related to crypto that crypto and the SEC was even cited as evidence as to why Chevron deference this doctrine needed to be overturned. So this is something that is directly impacting our industry, but it actually impacts the entire rulemaking process of all federal executive agencies.

There is a lot to unpack here, which is what we do in this podcast. So go ahead and strap in because it's a big one. So let's go ahead and get right into the conversation with Justin Slaughter from paradigm. But first, a moment to talk about some of these fantastic sponsors that make this show possible, especially Kraken, our preferred place to buy crypto in 2024. If you do not have an account with Kraken, consider clicking the links in the show notes.

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Speaker B
If you're not educated on what that means, we'll describe it here today. And the question on our minds, is this good for crypto? Is this good for the United States, or is it this giant trade off that will lead to bad outcomes? Our guest today is Justin Slaughter. He's policy director at Paradigm.

He's previously been a senior advisor at the SEC and also a chief advisor at the CFTC, so he has spent some time in the belly of the beast. Justin, welcome to bankless. Thanks for having me, guys. Well, let's get this out of the way. So slaughter is your real last name, right?

Speaker C
Last name? Okay, I will tell you, when I joined paradigm about two and a half years ago, when I first tweeted, someone said slaughter is the name of their policy director. No one can stop us. And I was like, thanks, guys. I like that you think that my name dictates my abilities, but I'm going to, I'm not going to, you know, dissuade you of that knowledge.

Speaker B
It sounds like a meme coin, and that's, you know, can be bullish in this industry. Uh, and also, let's get something else out of the way. So you're previously in the SEC and also part of the CFTC. So you spent some time over there as part of the administrative state. So what were you doing over there and why did you come here?

Why did you come to the light? Long question. So basically for me, I've done a lot of things around government. I clerked for a judge back when I was getting started. I did law firm life for several years.

Speaker C
Didn't really love the big law lifestyle. Moved over to the hill back in 2012 to work for then Congressman Ed Markey, doing oversight for him on gas futures, oil futures. And it was doing that job I first encountered the only digital asset at the time, bitcoin, and I'm an honest person, didn't buy any, I regret that, but kept following it. Moved over to the Senate with my boss in 20, 12 13. Sorry.

His general counsel moved over to CFTC to work for commissioner in 2014. It was there when I was working for her. Sharon Bowen, great commissioner that CFC held bitcoin as a commodity the first time after I'm a Democrat. We lost in 2016, so I need to get a new job. I did fintech consulting and crypto consulting for a few years and then worked at the SEC at the start of the Biden admin, where I advised acting chair Alison Harrin Lee on a bunch of stuff.

That was a fascinating experience. We was there during the GameStop, the first GameStop fiasco, and it was after I finished that I got connected with paradigm where they said they really wanted to build a policy function. And I just fell in love with the firm, fell in love with the work that they do. Fred Erzem, Matt Wong, Dan Robinson, Alana Palmetto, and been here now two and a half years and just having a blast. Yeah.

Speaker B
You still enjoying it? No regrets, of course. Zero regrets. Best move ever made in my life. And on the CFTC side.

So we had Timothy Massad on the podcast talking about state. Former chair. Yeah. Did you know him? Did you interact with him at all?

Speaker C
We worked together frequently, so he was one of the five commissioners of the chair when my boss, Sharon Bowen, was the commissioner. And we would often have to interact because for a large chunk of the time, there were only three commissioners. There's all these little tweaks and catches to the administrative state agencies. When you only have three commissioners. There's this thing called the Sunshine act, which means you cannot have them all meet in private on any substantive topic.

The idea is to prevent kind of people creating shadow majorities. Exactly. So I frequently would do shuttle diplomacy between my boss and him rather than have the two of them be able to speak. Ever so loved him. Talked to him a few weeks ago.

Great guy. Interesting. So you're like a crypto bridge, then? You're bridging information over. I suppose I'm abridging everything, right.

Former Hill crypto VC, Sec, Sec, CFTc. And I come from the administrator to tell you DC is veep. If you need a paradigmic sense of how DC works, it is veep. Yeah, but are they out to get us, though? Are they?

I mean, here's the way I describe it, right. It is not the case that everyone in DC is thinking about crypto. Even everyone, every finrig agency is thinking about crypto. Are there people in DC who are hostile to crypto in the admin? Yes.

Are there people who are friendly even now to crypto in the admin? Yes. Also, the administrative state, any administration, contains multitudes. And the mistake is thinking it's one lumbering behemoth that is clearly going in one direction or the other. When it's all these different groupings, all these different cabals and entities mixing together, fighting on one issue, working together another one, it's much more chaotic than you might expect.

And this brings us to loper bright because, of course, so much of policymaking now is decided through the administrative state, and that is something that has become increasingly controversial in the top flights of the judiciary. The Supreme Court. Yeah. So let's talk about Loper Bright, then get right into it, and you can serve your role as a bridge once again between the administrative state and crypto. I think we will need some definition of terms of this administrative state, what it is and how it came to be.

Speaker B
Let me just set up this episode with some backdrop. The US Supreme Court has had a busy few weeks, let's say, and out of scope to talk about in today's episode is some of the more recent cases making nude. So we're not going to talk about Trump versus us at all today. That's out of scope of this episode. Maybe worth a podcast in itself, maybe on bank lists or maybe on a politics podcast.

But the one ruling that we're here to talk about, which is potentially massive, I think. Justin, you said in your tweet thread, that it could trigger a sea change in all regulations, crypto. And outside it is this loper break case. And some people may have heard it called Chevron deference, the Chevron deference case. In fact, we had a tradfi Wall street representative, Sam Journey in on recently on bank list.

He told us about this. He said, this is coming. This is something that most people in crypto aren't paying attention to because. But you should be because it's profound. And so this case has been.

The Chevron deference has been struck down, I believe, right, which is like, correct. For 40 years it was, you know, in precedent, and now it's down. And so I'm hearing divided things. So from my in crypto tribe and pro tech, the people that maybe, like, skew. Right, or, or skew pro growth, let's say.

I've heard this is amazing news. I've heard this is finally going to strip the power seeking regulators from their ability to make up these arbitrary and capricious random rules. Right? Like the archetype is, is Gary Gensler. And this strikes right at Gary, the Gary Genslers of the world and restores power back to kind of like where it should be in Congress.

Now, from non crypto sources, I've heard something different. Mainstream media, those that skew left, I've heard this is going to lead to chaos. This is like, going to put us in a place where our corporations have no more checks and balances, that the decision making, the governance, is going to be made by uninformed judges who just, like, have no idea what they're talking about, that this is going to be worse governance, that's going to be bad for the people. We're going to get polluted rivers and just like, I. Nuclear, like, meltdowns and reactor cores and all sorts of bad things.

So I think here we're trying to find out the truth, right? Like, is this good for crypto? How good? And, like, are there some trade offs here? So maybe we could start the conversation.

Can you just tell us how we got here? What is loper bright and, like, what case was just ruled on? Like, what did this happen? Just give us some context on the significance of it, and then we'll get into definitions of the administrative state, etcetera. All right, so forgive me on this.

Speaker C
It's gonna take a little while to go through the history here because there is a long and torturous history that dates back basically to the beginning of everything in the US. 1789, a constitution. So we in the US had initially a pretty small government. We had in the constitution of Congress, we had an executive branch. We had led by the president, we had a judiciary.

And for about 100 years, there wasn't much more of the government than the military. We didn't really have a standing army for very long. There was a taxing process. There weren't that many advisors in the government because it didn't do that much. And that's true in a lot of countries, frankly.

But over the 19th century, as the world industrializes, everyone realizes that the increasingly complicated aspects of modern life, especially increasing commerce, you need more people managing the system of government, managing the laws. And so around the world, in every developed country, the UK, Germany, France, Russia, even Japan, here you start to see a building out of expertise of politics and policy. The US, in many ways, is the last country to really build this out in a big way. And our formative moment for the administrative state is the new deal. We were at that point creating new programs, Social Security, which needs to be administered by people, of course, to hand out the benefits, creating new systems of law and regulation, telecommunications law.

You need the FCC for that, securities law need the SEC for that. And for the first time, you really have the building of a series of different agencies that try to craft comprehensive regulations across the economy, across the entire government. And to be clear, this is not a normative statement. This is just what everybody has done. Nobody has found a way yet to have a very vibrant, dynamic, large national economy without some pretty large bureaucracy.

That's what the administrative state is. But of course, you build these programs, and it then leads to a second question. How are these programs run? Well, in the 1930s, they functionally were run almost with total power to the president. There's a great vignette people like to cite.

It's from Robert Caro's famous. The power broker. Robert Caro was writing about Robert Moses. He's one of the great men who built, some say destroyed New York City. He did all these bridges and tunnels, and there was a bridge he wanted to build in lower Manhattan, was going to destroy an old fort and aquarium.

The city hated it, the people hated it. And Moses just had basically power to do it. He was going to do it. There was no notice in comment period. FDR was able to use his own administrative power to stop it, but it took a president to do that.

So FDR, as heterodox and farsight as he was, realized, you know, I'm pretty good at running this administrative state power, but what's the next guy going to do? So he tasked his then attorney general, future Supreme Court Justice Robert Jackson, to look through and say, what do we need in terms of a law that lays out how all these administrative agencies will work under the law? What are the processes that will guide us? What are the guidelines? And Jackson came up with a report.

In the early forties, it was derailed by the second World War, and after World War Two, they passed the administrative Procedure act. This is itself the main law that details how administrative agencies work. Have you guys at bankless ever done a comment on any rules so far? I think you've certainly discussed comments, but I'm not sure. Yeah, we have.

You have done them. Ir's commentary, for one. Do you remember their ridiculous kind of like, rule set that they were proposing and like, yeah, we encouraged the community to respond, even to like, generate some AI response as well, to just like, try to comment on that. Are you telling me that was all APA stuff administered? The reason there is a requirement to do notice and comment where you propose a rule, get comments from the community, from stakeholders, and only then can finalize.

That's required under the APAE, the standard of arbitrary and capricious, that no rule can exist that's arbitrary, capricious is required under the APA. This is the foundation of how all agencies work. Now, the good thing about it, right, is it came up with this new standard. The bad thing, of course, is that any question you answer in law and government leads to more questions. And one of the first ones they came up with was, okay, we have all these agencies, their expertise, and the whole theory is that Congress is too busy to deal with the specifications of every last jet engine or every last token, whether it's security or commodity.

You need someone else who can focus on this and build expertise. But to what extent does this law, we don't have agencies in the constitution, right? We have an executive branch led by the president. We don't have an sec, we don't have an FAA. So you start to see debates inside policymaking and legal spheres over how should we consider an agency's actions and how should courts defer to them.

Initially, the liberals, who largely dominate the judiciary between 19, basically 35 and 1980, wanted Max Power to the courts because they wanted the ability to say, at any time, we're going to look at this and under our own thinking, our own expertise as lawyers, we will decide whether or not a rule makes sense or not. When you say liberals, you're talking about the left. Democrats, Democrats, progressives. Today I think they were called progressives. Today they were called progressives.

In the 1910s, I identify as a progressive, but back in the 1960s, they were known as liberals. So liberal, progressive, interchangeable. So conservatives, however, at this point, especially the 1960s and seventies, largely dominated national elections. And so they were more likely to have the administrative agencies under their control. You had the Nixon years.

You had then also 1980, the Reagan years. So what eventually happens is that in 19, I think, 82 or 83, the EPA does this rule to change the definition of the word source under a clean air act, and the National Resources defense counsel sues, saying, you can't do it that way. This is the Chevron case, Chevron versus NRDC, where the Supreme Court says, okay, we're going to put this to bed. We're going to come up with a system for how you should defer to a key part of agency action, which is when agencies decide that a statute means what they say it means. And this is simplifying greatly.

This is a two step system. We're going to look at the statute and we say, does this answer explicitly the question being asked, does agency x have power over fisheries? Does it have the power to change this word? And if it does, it says it. That's the end.

If it's silent, if it's on somebody that, say, didn't exist in the 1930s or 1860s, when a statute was asked, then the agency can come up with its own rational interpretation, and we will give deference to that interpretation, not saying it's locked in, but basically it's like a burden of proof. And this becomes the foundation then for administrative law for the last 40 years. The idea being, okay, we have the experts in the agencies deciding where their statutes begin and end and what powers they can take. But of course, over time, people start to get concerned about this as well. For one thing, conservatives say this is leading to an increase in administrative power because the people analyzing the statutes are the ones who get more power.

When is there going to be an agency that says we don't have this power? They're always going to arrogate more power to themselves. The other thing that happens, though, is that over the 1980s, you have the dwindling of Republicans winning national election. Between 1988 and the present, the Republican Party has won a majority of the popular vote one time. Right.

Increasingly, Democrats are favored in elections. So you have Democrats starting to focus on how can they use their administrative power to make change using old statutes. There's a whole discussion about this that started Biden admin as well, of which the SEC, we can come to as part of that. And Republicans are concerned about administrative power being abused. And this is not just one thing.

Right. There's a whole push by Chief Justice John Roberts to reduce the power of the administrative state on a couple of topics. There was this big fight a few years ago about whether or not this case called Humphrey's executor is still good law. Humphreys executor was whether or not a president can fire an FTC commissioner. And it's possible that's going to come down soon, too.

So last week, then you have this case, the Supreme Court, and much like in a lot of law, the individual case doesn't matter that much. Right. Chevron was about this one sourcing thing. Nobody recalls. Loper bright is the case in question here.

This is about a fisheries law where apparently a local fisher, I think, in New England, has to pay like $700 a week or something to have a regulator on their own boat and monitoring their law. And the argument was, this is not rational, this is not realistic. And so they sued. They got Supreme Court. I just want to add that the costs of this, of the oversight on the boat was prohibitive for so many captains and sailors.

Speaker A
And so the reason why it went to court is because it was imposed upon the agency to end up destroying a lot of small businesses. Exactly right. And it was $700 a week, which is actually quite a lot for a small business. Fisheries is a terrible margin business. But you have this decision at six three.

Speaker C
You have all the six republican appointed justices saying they vote in favor of this and the three democratic appointed judges voting against it. Where the court says, you know, Chevron has become a tool of administrative overreach. We think it is not based in the actual APA or the constitution. The APA does not say that judges should defer to agencies. It just says courts should consider always whether or not an action is arbitrary or capricious.

The power stays in the courts. And it was interesting. Right. I'll jump ahead. To this surprise, crypto is part of this case.

One of the arguments made by conservatives in particular is that Chevron is pernicious because it prevents legislation from passing, because agencies decide they don't need new legislation, anything, they can use existing powers. And when one of the. Which, by the way, it's like when you hear Gary Gensler say, or even Jay Clayton, like, all tokens are securities. I've never seen a token. That's not a security.

Speaker B
That's effectively what they're saying. We already have the laws. Well, yeah, he would explicitly say that. Gary Gensler said, we don't need any new laws for crypto asset securities. We have the orange Grove Howey test from 1932.

Speaker A
He said that many, many times. And this is what happens, right? Justice Sonia Sotomayor is talking with the plaintiff's lawyer, Paul Clement. Great lawyer. I think he was former solicitor general, which is the top appellate lawyer in the government, and asking him, you're talking about gridlock from Chevron.

Speaker C
What do you mean? And he said, no, what I'm saying, I'm quoting now, is chevron as a big factor in contributing to gridlock. And let me give you a concrete example. I would think that the uniquely 21st century phenomenon of cryptocurrency would have been addressed by Congress, and I certainly would have thought that that would have been true in the wake of the FTX debacle. But it hasn't happened.

Why hasn't it happened? Because there's an agency head out there that thinks that he already has the authority to address this uniquely 21st century problem with a couple of statutes passed in the 1930s, and he's going to wave his wand, he's going to say the words investment, contract or ambiguous, and that's going to suck all of this into my regulatory ambit, even though the same person, when he was a professor, said, this is probably a job for the CFTC. Oh, my God. So crypto was part of the argument here. So cryptocurrency was discussed in the Supreme Court and the case of Tier Gensler being sort of arbitrary and suspicious.

I mean, there's only one press person who's previously been a chair of the CFTC and the Biden admin and also is a professor at MIT. Wow, that's incredible. I think this is the thing that's really notable in that loper bright represents both. What happens when you don't have a push for legislation from the agencies themselves. If you don't have agency heads saying, we need legislation, you don't get new legislation, usually because Congress, in their wisdom, is rarely going to say, we're going to overrule one of our own administration's heads, that he doesn't need legislation.

But you might think, right, that most agency heads would want new legislation, but it's not always the case. Sometimes they think, I don't need anything new. I have everything under my existing power. Even though this court is saying that's bad. We don't want that.

We want you to be seeking new powers that respond to changes in the time and technology because laws need to be updated along with technology. Yeah, it's funny to me that the arguments point to Gary Gensler, chair, gens as basically exhibit a for this type of behavior, and, like, why Chevron deferent should be overruled. Right. And, like, they're seeing what we've seen in crypto this whole time, which is a regulator that is kind of like, looking to expand his domain and increase his kingdom into areas that really shouldn't be under his control. But, like, he thinks everything's a token.

Speaker B
Everything's even a Pokemon card. It could be if it's tokenized, like, possibly, right. One thing I want to get back to before maybe David summarizes all of this is this statement. The first time I heard this phrase arbitrary and capricious was with respect to a, I believe a judge saying this against. I can't recall the specific case.

Maybe it was multiple cases, but about the SEC kind of pushing their jurisdiction too far into crypto. And I remember the judge, the statements just smacked it down and said, no, this is arbitrary and capricious. Maybe it. Was it the bitcoin ETF. I think it was ETF.

It was the bitcoin ETF. And saying, like, you have different rules for crypto because you don't like it. You're being arbitrary and capricious with respect to this. And that judge was referencing the APA basically, and saying, like, hey, this is beyond your power. This is, like, law since the 1940s.

Speaker C
Did you say 1946? Okay. And that's what. So the SEC has been accused by courts of being. Of basically breaching the API APA previously as well.

I mean, that's the thing. Usually when a regulation gets struck down, it's because the agency was deemed to be acting arbitrary and capriciously. The whole theory we have for creating administrative state is they're experts here. They have something special. They have unique knowledge.

They're not just people off the street. They're not general practitioners like judges, for instance. Most judges are not going to be experts in everything they touch, because who can be? They're technocrats, but they're not politicians, right? They're not trying to, like, like, create power domains.

Speaker B
They're just trying to make, like, unbiased, neutral decisions. But that's the theory, right? That they are not politicians, and therefore, we expect their decisions to be reasoned, to not be arbitrary and capricious. Politicians, in their infinite wisdom, is represented, you know, representing the people who voted them in office. They can decide what, for whatever reason, to take a vote.

Speaker C
And that's good, and that's fine, because we're protected by how they're voted on every few years. But nobody votes for the experts, nobody votes the technocrats the most is a chair of an agency who gets voted on by the Senate. But it's still at remove, arbitrary and capricious standards and the APA itself as a whole protect us from regulators getting out of control. They create guidelines. They also create certainty.

Because the theory is not that every four years every agency shifts massively with the president, but that there is some consistency over time that both democratic and republican presidents can implement the Clean Air act, that they both can keep Social Security flowing. That's a baseline theory of our government. That doesn't all just stop when one party changes power. But we come now to the real topic, which is, what does this all mean? I suspect, and just to really lay down the punchline, the reason why we are talking about this is because this is overturned.

Speaker A
This status quo that has been the case for 40 years is now gone. And so can you talk about the shift in power that that represents in our administrative state? The way to think about this right, is that over the last 40 years, there's been increasing power that's been agglomerating to the administrative state. Agencies have greater confidence that the choices they make will be upheld by courts. Now that is beginning to fade away, to be expurgated.

Speaker C
It's going mainly to courts, but also to Congress. And I'll say why? So courts now can say for any reason they want to review a specific rulemaking, and they can decide whether it's, you know, they don't have to defer to the agency. That means courts have a greater ability to strike down rules or to say an agency was acting arbitrary, capricious. They don't have to, you know, even decide whether or not to defer to an agency's view.

They can just do it themselves. So we're having more power to the courts and especially the Supreme Court, because, of course, there is no court. That's a check on the Supreme Court. But it also means more powers flowing back to Congress. If you cannot have agencies more able to expand their power through existing rules and statutes, that means they then need new statutes to pass.

And that means that rather than just Congress waiting for an agency to deal with an issue, they have to take more proactive steps to try and pass legislation on it. This is where there's a big divide, because on one hand, the argument is this is good. It will reduce misuse of the admin state. It will make Congress act better. That's kind of the view on the right.

The left view is this is terrible because Congress is super gridlocked now. If the agencies can't do things and the executive branch therefore can't do things, and Congress couldn't do things, and the court can't actually pass legislations and regulations itself, no one can do anything. And I think that they're both right and they're both wrong in reality, right. It's not the case that just because a court can strike down a rule that will do it all the time, it is probably the case that now you're at greater risk if you're really aggressive and novel at getting a rule struck down. But hypothetically, if you were to do most rules in a bipartisan fashion, if most rules passed, not be a three two majority as a lot of past this admin or Trump admin, but through a 50 majority as most rules passed at the CFTC during the Obama years under chair Genslere, even on Dodd Frank, it's more likely courts won't strike him down.

So you're losing some, shall we say, avant garde powers in the regulatory state. But it's not the end of an agency to pass a regulation. They can still do that. It's just somewhat cabined in Congress. I do also think it is probably the case that Congress is not going to start becoming a legislature like the UK parliament or the japanese diet that just moved bills very quickly, but it probably will move faster eventually.

Change happens one way or another. There's no way to stop change forever. So at some point, when an issue becomes pressing enough, there'll be a push on. And we see that even with crypto. Right, where crypto policymaking seems to shift to Capitol Hill, depending on how topical it is in the news, in years like 2017, 2021, and 22.

And this year, a lot of discussion happens on crypto policy in fallow years like the end of 20, 219, and 20. It doesn't. But that means Congress still responds to events in the universe. I don't think this means that now nothing can ever happen and the US is deemed, you know, basically sentenced to a sclerotic existence. New projects are coming online to the mantle layer two every single week.

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Uh, we have this thing in America for all the european and asian listeners called, uh, separation of powers, checks and balances. And we have these three wings of government. We have the legislative, that's Congress. They write the laws. We have the executive, that's the president, and the agencies that we're talking about.

And then we have the judicial, those are the courts, and they're all in like this, like three way, like, finger gun battle about, like, who's got what power. And with the Chevron deference doctrine in place, a lot of power went to the executive agencies. That's the Gary Genslers, the SEcs, the EPA's, the FDics of the ABCDs, like, whatever, any sort of agency. And I think that's the bull case. The good case for this is we have this fundamental problem in state, this kind of last mile problem of, as we grow in populous, as we grow in technology, things get really complex.

And so we need to have this. We need to write a bunch of laws to account for all the things that we do. And so what the Chevron doctrine did is it just deferred all that power to these agencies, which was the executive branch, but then that introduces this, like, well, who's checking on the agency problem? And in the good case, we have basically, like what Ryan said, a bunch of technocrats, like, a bunch of nerds. I really want an environmentalist to be like, in the EPA.

That makes sense. Some researcher person to be in the EPA, and they'll just write the rules. That'll be good. Let's have the nerds run agents glass pocket protectors. Exactly.

Yeah. And hopefully they write good laws. They'll figure out how to manage well. But then the bear case is that every once in a while, you have the guy who takes the position because he wants power, not because he's a technocrat. And that might be a Gary Gensler.

Does Gary Gensler want to promote Gary Gensler or does he want to appropriately and effectively govern capital markets? Like, I think that, in my opinion, might be the latter. And so you have these edge cases where you have, like, these agencies that, like, naturally accrue power over time the longer that they live, because they, they effectively just collect power over time. They just says, like, oh, I think we should govern over that. And they start to select for that.

I think, and they start to select for that, and it becomes into, comes into a cancer. And this is where you get, like, the Arab Voorhees types, which is like, you know, some, only small government, like, big, small government. Let's go backwards. And so now we have this chevron doctrine that is overturned. And so rather than these federal executive agencies slowly accruing power over time, they're going to dissipate power, and it's going to be split up to go to the courts and to Congress.

And now the courts are kind of the people who are like, well, now who's checking the courts? The Supreme Court is now, like, the people that, like, no one is checking on. And this is what some people are saying is, like, bad. Like, Elizabeth Warren put out a tweet saying, like, extremist courts are now, like, writing the rules. But then we're also saying that, like, now also Congress will have an increased burden to write appropriate laws in the first place.

And so we're taking this power that has, like, really accrued in the executive branch, and we're kind of splitting it up into both Congress and the courts. And now we're all, like, all kind of unsure as to how this whole thing plays out. But that's. That's where we are. How's that for, like, the whole summary of, like, all of this?

Speaker C
That's pretty damn good. I mean, that's basically it. That, as with everything else, there's balance. I think a lot of people are both being too triumphal and too pessimistic, being on how much they hate this case, in thinking that this is, like, the end state. It's a ongoing finger gun battle, as you point out, between the different branches.

And they're all responding to events. They're all responding to different incentives. It never ends. It's always going to go on. If it is the case that this leads to a total breakdown of the government, it's not going to persist very long because the american people will not tolerate a government that literally can't make sure that the milk you drink is not poison or that we don't have any rules.

Everybody, I think, agrees and crypto wants some kind of rules. We debate about the nature of them, but nobody wants a total free for all where it's, oh, it doesn't matter. We'll do whatever you want. So I think that is a protector from this being the two downside of the, the bear case, but the bull case. The thing I would actually say as well, crypto has experience is where we're special, a proto loper, bright world.

Already, increasingly I'm hearing a lot of clever people saying, okay, so the Supreme Court has said we can't go after campaign regulations, but doesn't say we can't do enforcement actions. And maybe this means it's easier to have a court allow novel enforcement actions. Even we can't do regulations. What does this sound like? This is exactly what the SEC has been doing in many ways.

They've not been doing rules on crypto for us after all. Instead, they've been doing a whole host of enforcement actions. I think in the short term, you're going to see a lot of people take the Supreme Court literally, not seriously, to use the parlance of a recent presidential candidate, I guess, current one, they're going to say that the Supreme Court is speaking literally, not seriously. So they're going to try and say, what we can do is we can do enforcement actions now, but in reality, what they're saying is we don't want novel approach to regulatory power at all. But for the short term, for the next few years, it might be the case we see a lot more actions via enforcement actions or trying to comport quasi regulatory actions and enforcement actions on novel spaces.

So here, too, crypto may be kind of the genesis of a change, because we're probably the industry that's going to get the Supreme Court first in terms of discussing whether or not the current administrative actions taken by the SEC are actually allowable. And I tend to think they are not under this doctrine we're seeing in loper bright and other anti administrative state cases. If you're saying you can't do this, they're not going to say, but you can do a totally novel, off the wall enforcement action. It's not going to fly. I want to throw one more framing your way, Justin, to see if you can kick the tires and give me a grade on it.

Speaker A
One framing for this spectrum of pro Chevron doctrine or anti Chevron doctrine is that we have, like, on one side, over regulating expert agencies versus under regulating uninformed courts. And so, like, some people are saying, like, wow, of course we want. Well, of course we want the agencies to do the rulemaking. They're the smart people who know the subject matters that they're regulating over. And.

But then a bear might say, yeah, but they do too much. They make too many rules. They, they fill in very proactively, make rules where they didn't need to make rules. And that's really just sucking the oxygen out of startups and things. And then on the flip side of things, you have courts who are reactive, so they're not making rules ahead of time, they're under regulating, and they're also uninformed by contrast to the agencies.

But they're allowing for voids to hopefully be filled by the market and startups, and allowing things to happen before they react to them, rather than making proactive rules. So that's my framing. Over regulating expert agencies versus under regulating uninformed courts. How accurate do you think that framing is? I think it's pretty good framing.

Speaker C
I mean, I think for a lot of people, how you feel about this depends upon that framing about whether you fear the risk of an under regulating court or an over regulating agency. But I actually get even more complicated, which is it also just goes, most times, right, less to the theory and more to the people. At the start of this podcast, I mentioned, of course, that initially the people who want to power the courts on the left, people who want power of the agency on the right, because back then the left had the courts and the right had the agencies. Now it's reversed because the left has the agencies, the right has the courts. So I think for a lot of people, it's less about the actual theory and more a tribal.

Which one is what I want as an outcome based process. I mean, that's a fear, in fact, right? Because I look at this, and the overall goal here is balance. It is always the case that there's a role for the experts. It's also always the case.

There's a role for non expert judges. Nobody gets it right 100% of the time. There's bias in everything. I have actually become a big believer that the best thing you can do in hiring the government is hire a wide swath of people, not just the usual people who come from Capitol Hill, which I did, but people who've never set foot in a government agency, almost because their new eyes and new experiences will give them insights that you would not get from someone who is a lifer at the Carnegie Endowment, the Hewlett foundation, and the US Senate. It really does take everything.

And I think that's, in fact, one of the great powers of crypto, is we have so many people coming from so many different parts of the world. Me, I'm almost a pure fed, and I'm into it because I'm a big supporter of decentralization. But it makes us more powerful, it makes us better. When government is at its best, it has views from many many people, it's a big tent that takes into account of everybody. And I would dare say that's kind of the small l liberalism that even Eric and others say they want.

Nobody wants a sense they're locked out of power. They can't have a conversation with who's in power. You want to have an ongoing engagement with everybody of many different interest groups coming together for the common good. One thing that is the case, regardless of the bears and the bulls, is that we have hit peak Gary Genslere, haven't we, in like 2024 and 2023? Because Gary Gensler has been significantly defanged on the back of the overturning of Chevron deference.

Speaker B
Not fully defanged, but, like, significantly defanged. I think. I think this is a pretty big move. And I guess, like, you know, even if you are a, you see this as tragedy maybe on kind of the left, I think you have to acknowledge that, um, like, power corrupts over time. And, like, what I'm, what I'm sort of hearing from the folks that are bearish on this is like, okay, we have an inactive Congress, and this gives more power to the courts.

And we want an administrative state to be full of technocrats that can actually look at the detail. But in effect, because we've had 40 years of this, we have moved from technocrats filling these roles to, like, politicians who are hand selected by other politicians. And it's been corrupted. It's more about sort of power and expansion and less about actual credible neutrality. And I think I've seen this firsthand.

Like, crypto is a lesson. Money, it's a lesson. Economics, it's a lesson. Finance, it's a lesson in philosophy. It's a lesson in civics.

And I've seen it firsthand. I've seen the difference between Hester Peirce, who approaches her role as a regulator from first principles. Right. And Gary Gensler, who I would contend, I think many crypto would contend is seeking power and has a political agenda behind his motives. And those are two very different regulators.

And that's because we've had 40 years of all of this power accruing to the administrative state. So the reason I am probably net bullish on this is because it just restores some of that balance. And the other thing it does, the other thing I have seen, Justin, I'm wondering, you corroborate this, is Congress is, like, not doing its job at all. So, like, what it tends to do is when something like FTX happens, right. It calls the administrative state and the regulators to task and has this whole showman like testimony in front of Congress and blames them for not doing.

And I'm like, Congress, it's your job. What you should, you should put together some laws for this industry rather than abdicating all your authority to the administrative state. So it kind of forces them into a position of having to act because the administrative state is no longer there anyway. That's a jumble of thoughts. But, yeah, what's your take on all of that?

Speaker C
I mean, it's all true in many ways. What I would say is, I think a lot of people have not appreciated how agencies have changed themselves over the last 30 years. We have had them become more partisan, in part because I say this as someone who supported this was there at the time, and I still support it for a long time. It took 60 votes to get confirmed to a post in the us government. That's a Senate confirmed post, which meant almost always you needed both parties votes and this over time became weaponized.

People realized there's a way to use this to restrict more extreme members in either side. That then led one party to respond and to kill the filibuster for those nominations. It was in 2013, I was there in the Senate. And so now you get more aggressive people on either side, more politicians of both parties, and then you start to see once you have politicians in the agencies, they then are willing to engage in more political behavior because they're only speaking right to the people who put them in there in the first place. If you don't need both parties to vote for you next time, you're not gonna look at both parties.

But at the same time, I will note, I was at the SC and Gary was confirmed. Gary got republican votes. He got four or five republican votes at the time. So it's not as though he was a partisan appointee like other people were at the same time.

This goes to a real question of, like, how is it government is meant to work? It is definitely the case that Congress has moved away and lost all the muscle memory of legislating. There's a whole bunch of reasons we go into on that. There is an ongoing issue where I love this for a long time. If you're a member of Congress, your salary is capped, of course, doesn't go up with ColA unless they vote for it.

And there was this big scandal where they were voting pay increases. Well, for most years, their staffers as well, salaries were capped. The members, and they're paid very little. So as a result, people don't stay in Congress for very long, the staffer class leaves and becomes lobbyists or other jobs. So you had an aftertheating of knowledge, they closed down some areas in Congress in terms of power, and it's become a job that's more.

In many cases, you hear this from members of Congress messaging than substance. It's part of why a lot of members, especially younger members, love crypto. They're like, this is a topic where it's not partisan. I am a liberal Democrat or conservative Republican. I'm Richie Torres or Tom Emmer.

I can work with someone. I would never work with any other issue, and we can engage substantively on it. In policy. This is not something that's been done in decades. In many cases.

I think that is the real lesson of all of this. There's no shortcuts in policies. We see this with crypto. There's no easy solution of, you flip a switch, you do one slight change, and suddenly everything falls into place. It's complicated.

It's hard. We're facing novel questions. They are not easily resolved by the 33 act or the 40 act or the Commodity Exchange act. As chair Benham points out, he thinks he needs new laws. And I agree.

By and large, the way to deal with it is to come together, work with everybody, and figure out a solution that maybe nobody will find perfect but everybody can find acceptable. And that should be to the common good. And that power has been lost, I'd say, over time. It used to be that Congress would pass many new laws a year, and these days it does not happen much because it's really, really hard and the incentives are not there. To your point, right.

If an agency can do it for you, why are you going to take on all the pain and struggle of actually doing something unless you are determined to make a name for yourself or just wonderfully crazy? So I look at this, as a result, on the left with less anxiety than I do possibility, because I do think this could lead to a return to focus of the core theory of change, which is always the legislature. That is article one in the Constitution, not the executive branch, is article two, not the judiciary, which article three. Congress was meant to be the primary locus of making change. And I think the more we can restore that muscle memory to Congress, the better.

And if we can do it with bipartisan topics like crypto, more the better. I do think, I think your tweet thread made this point as well. I mean, there's sort of a win here for folks on the left because, so I think probably the administrative estate is generally viewed as a bit more left leaning, at least the Gary Genslers of the world. And particularly it's under a Biden administration. Administration.

Speaker B
But you can imagine a world where, let's say, the republican presidential nominee wins and just deletes everybody, just basically goes through and fires everyone and replaces them with right leaning people who are in these heads of various administrations, who are very much toeing a party line and not neutral at all. They're politicians, not technocrats at all. How bad would that be for the left? Right? And it's kind of like this argument of, it's good for that power not to reside in the administrative state in general, because if the right marshals it to its purposes, then it could be used very much against the left.

That's why I was a little confused about some of the reaction of the left of Elizabeth Warren. I think you painted a counter reaction of somebody on the left who was like, hey, we don't want Trump to have this administrative state power. This is actually a good thing for the left because it restores balance. Is there anything to that? I think so.

Speaker C
Right. This goes to a core theory of, like, how politics should work, because there's some people who say you should try to make it impossible for anyone to do anything right, and then no one can ever get hurt, but no one can ever do anything. And I don't agree with that. But also I don't agree with the theory of, if we have no restrictions on us, then we'll be able to make change. It'll be so popular that no one will ever vote us out.

This was a theory of a british communist group called militant in the 1980s. Their theory was, we're going to run the government. We're going to basically nationalize everything. We're going to run as a planned economy. And they said, well, what happens if you lose and the other side gets power?

We would never lose because everyone be so happy. I tend to think decentralization is good as a watchword for a lot of reasons, at least. I would never want to live in a system where I would hate if I was entirely on the wrong side of power. And I say that as a progressive because there is never a system in the world where absolute power will only be used by your friends. Absolute power is too easily corrupting and corruptible.

It is better to have many overlapping systems so that no one can get out of control because we're all human. One of the greatest lines I ever gave in a speech from my boss, Sharon Bowen, was citing Thomas Jefferson this is back when I was at CFTC and it was, if men were angels, they would have no need of government. We are not perfect. It's because we're not perfect that we come together to come up with laws and regulations, because we know we can all fall prey to not only momentary temptation, but consistent, long lasting temptation and mistake. It's to protect against that.

You want nobody who's particularly overpowerful. I think that, of course, goes to the second point, which is for the left. I think the anxiety they have is that this Supreme Court is not on the level for their wording that it's not a fair system. And I don't disagree necessarily. I think six three is too unbalanced as a partisan split.

I know Republicans who even say they don't want to get more powerful in the Supreme Court because it become even more unbalanced. If you had a court that people felt was not biased in one direction, there would be a lot less agita about this decision. Yeah, that makes sense to me. Okay, well, let's close this out and talk about the implications for crypto. Balaji put together kind of like a bull case tweet for Chevron deference being overturned, and he was very bullish on net new space for startups, in particular tech, because certainly new tech areas are an area where the administrative state can start to encroach and say, oh, no, that's news.

Speaker B
So that's mine. It falls under my territory. I got it. And that's certainly what we've seen in crypto. So my immediate reaction to Chevron deference being overturned was like, I don't know what this means as far as, like, is it good for the US or not?

But I know it's good for crypto, at least I'm pretty sure it is, because our big request from the us government is just like, let us do some stuff. Give us a sandbox if you'd like, but just like, we're developing, we're cooking this thing. It's just kind of like the Internet. Allow us some freedom and don't clamp down on us too early and maybe along the way bring in some helpful legislation. But what we've gotten instead is a bunch of over eager, overzealous administrators kind of like clamping things down in ways that feel arbitrary and capricious.

So is this just like net good for crypto? And is the SEC going to withdraw all of its cases against consensus and uniswap and Kraken and Coinbase? And we're all going to live happily ever after or like, yeah, what's the take for crypto? So in the short term, I don't think much changes because Gary's still the chair and love him or hate him, Gary never backs down. That is his calling card.

Except for the Ethereum, ETF, et al. Back. That's not a public stance yet, but yeah, that's the rare exception. In some ways. I think in the medium term it is good for crypto and that this shows once and for all, as a lot of us have argued, this approach is not workable.

Speaker C
You're not going to get to a regime of sensible regulation through the courts, through Rifleshaw. That was what I think the judge Amy Berman Jackson said on Friday night in the binance case that it seems strange to do this system of regulation through all these individual rifle shot cases where there's hundreds of thousands of tokens. So my hope in the short term is this refocuses a lot of attention, especially among Democrats, that you can't get this dealt with, for lack of a better word, by regulatory action or enforcement actions. It requires legislation in the medium term, I think it probably does reduce the risk that someone really goes after a novel space with an existing statute, because that's pretty clearly what's being disallowed here. It probably makes it more likely that Congress is not just doing legislation on new topics, but that agencies are lobbying for them to do that.

So for crypto, where we're pretty mature, I think it's a good thing. I do worry contraband that if we had some still pretty nascent space, say quantum computing, that a regulator would now run to Congress too soon before anyone knew anything, and create a moat accidentally. That's not, I think, a risk for crypto at this point, but it could be for a sub area that's not yet fully built out. Overall, I think it probably is going to be positive for a lot of startups because the biggest problem we have is all these moats around. If it takes $10 million to exist and to do a business, no startup can fundamentally exist.

The more we can create system tiered regulations that fit to here's where you are when you're starting in the sandbox, you're growing, you're getting bigger. We add the regulation that seems better, and I think what we will get, but there's a long way to go. I think we're going to see a lot of agencies respond to this with more enforcement actions to make up for their lost regulatory powers, which again, hard to see that happening more in crypto, given we've gone through, you may see that more for AI, maybe for other tech spaces, but pretty soon that'll be seen to be a dead end, and then you'll refocus on, okay, time to go back to Congress. So you think these enforcement actions, which are not rulemaking, they are enforcement actions. And so at some level, maybe Gary Gensler's SEC was kind of like predicting that something like this could happen and exercising its, like, power through enforcement.

Speaker B
But you think ultimately that's going to be smacked down by the courts because of this ruling as well? I think so. I don't think this court is going to say, oh, you got us. You did an enforcement action that was novel versus regulation. But I mean, part of this came for me.

Speaker C
I still know a lot of people who are both diehard crypto Democrats and diehard anti crypto Democrats. And I was vacationing, I tweeted about this. So I'll say it again with an anti crypto Democrat who's pretty senior in the government last summer. And I was like, why don't you guys, why don't we just do some regulation? And he said to me, Justin, it's easier for the Supreme Court to strike down regulations and enforcement actions.

And, I mean, what I said is that pretty cynical, and I don't think that's even right. I think you're really running a big risk here. But the sense I got right is that if and when this fails, and I think even this person was pretty confident the Supreme Court was not going to bite at this. The reason to do it then is, oh, people are seeing your fighting, which, again, not popular, but people make bad decisions, then I think there will be an understanding of, okay, we really can't do this. It's time to kind of accept that the administrative agencies are not the locus of change that we wanted them to be.

And that means different routes. I mean, in the end, I'm an electoralist. I think all power flows out of elections. It's one of the reasons I also like prediction markets, because I like understanding elections and how things change moment to momentous. And the more you can focus on winning a majority of voters for your policy platform in the Congress and the Senate and then executing it, that's better than trying to do it through a quasi faceless or shadowy super regulator.

Speaker B
So what do you think about this take as we close? So maybe the take is that we have hit peak administrative state and peak Gensler in the first half of 2024. And like now, in order to move forward in crypto, we got to focus all of our energy, all of our firepower on elections and on Congress to put together good bills and good legislation that will support this industry, protect civic freedoms, and propel us forward. And that is the new fight, because the administrators are going to have less power to get in our way. But we have to show up there and make sure we don't have bad legislation put in place, or that will be kind of like the new, I guess, gum in the works for crypto moving forward.

Speaker C
Yeah. All power flows from the ballot box in America. When you show that you have a voting bloc behind you, it changes things miraculously. And I think we saw that last month with SAB, with getting support for people who I never would have thought would stick their neck out for crypto. We saw it with, to some extent, legislation on market structure.

But I would also note, of course, the courts are important, too. Right? I think a lesson from this should be that if you're a small company, you feel like an agency is bullying you and out of their space, you should consider before you just settle. Actually, the courts may not agree with this, so I hope it makes people really think through whether or not just because an agency says the laws on their side, they actually do. Justin, this has been great.

Speaker B
I got another civics lesson, and it's been fun, actually. I didn't used to like civics, but this is in the context of crypto. It's much more interesting to me. So thank you so much. My pleasure, guys.

Speaker C
It was great. Love talking about this stuff. Make this nation. Got to end with this. Of course, you guys know crypto is risky.

Speaker B
So is politics or court cases, I suppose, from time to time, but I think we won this one. You could lose what you put in, but we are headed west. This is the frontier. It's not for everyone. But we're glad you're with us on the bankless journey.

Thanks a lot.