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Jason Gottlieb, a partner at the law firm Morrison Cohen LLP, suggests that the U.S. Supreme Court could offer a legal avenue for crypto companies to challenge the Securities and Exchange Commission in court.
At a time when the SEC is widening its view of what it considers a "security" and thus subject to its regulatory oversight, “We’re going to see crypto companies trying to push back against the SEC,” Gottlieb told CoinDesk TV’s “First Mover” on Tuesday.
In March, the Securities and Exchange Commission (SEC) filed charges against Bittrex, a cryptocurrency exchange, for breaching federal laws. Bittrex announced that it would take legal action against the agency if it did not provide a reasonable settlement offer, as the exchange intends to shut down its U.S. platform by April 30th.
Gottlieb suggested that crypto companies may utilize the "major questions doctrine" of the U.S. Supreme Court to delay the SEC's actions, as this doctrine dictates that regulatory agencies cannot overstep their authority. This doctrine was last applied in 2022 by the high court in a 6-3 ruling related to the Environmental Protection Agency's ability to implement an emissions limit for greenhouse gases.
In the aforementioned case, Chief Justice John Roberts authored the majority opinion, in which he stated that it was not the EPA's responsibility to issue an emissions cap on greenhouse gases and that Congress needed to provide clear authorization for such actions.
“What the Supreme Court has instructed is that administrative agencies, which are a branch of the executive department, are not allowed to take views that will affect major questions of the United States economy,” Gottlieb said.
So when it comes to crypto, “That’s for Congress to set the law, not for the SEC to say 'we believe the law should be no crypto,'” he added.
The United States' approach, or lack thereof, towards cryptocurrency is poised to have a significant impact on the nation's economic and financial competitiveness. Other jurisdictions, including but not limited to the European Union, the United Kingdom, Singapore, Japan, and the Cayman Islands, are actively developing legal frameworks that enable individuals to operate within the confines of the law.
Although these regulatory frameworks may not be flawless and may have both benefits and drawbacks, according to Gottlieb, they all share a crucial advantage over the United States - a definite pathway for crypto businesses to operate within the bounds of the law.
During Fintech Week in London on Tuesday, Brian Armstrong, the CEO of Coinbase, the largest cryptocurrency exchange based in the United States, stated that the exchange may contemplate relocating offshore if the regulatory landscape for the crypto industry fails to become more transparent.
According to Gottlieb, not all cryptocurrency companies are following this approach. He revealed that his crypto clients are inquiring about the possibilities of operating legally in the United States or as close to the legal boundaries as possible, given the ambiguities.
“We try to tell our clients as best we can what the law requires [and] what regulators require,” he said. “And sometimes, we have to tell you, sorry, it can’t happen here.”
Source Coindesk
