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

Episode Date: July 3, 2024

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.  ------ ✨ Mint the episode on Zora ✨ https://zora.co/collect/zora:0x0c294913a7596b427add7dcbd6d7bbfc7338d53f/25   ------ 📣 SPOTIFY PREMIUM RSS FEED | USE CODE: SPOTIFY24  https://bankless.cc/spotify-premium  ------ BANKLESS SPONSOR TOOLS: 🐙KRAKEN | MOST-TRUSTED CRYPTO EXCHANGE https://k.xyz/bankless-pod-q2   ⁠ 🦄UNISWAP | BROWSER EXTENSION https://bankless.cc/uniswap ⚡️CARTESI | LINUX-POWERED ROLLUPS https://bankless.cc/CartesiGovernance 🛞MANTLE | MODULAR LAYER 2 NETWORK https://bankless.cc/Mantle   ⚖️ARBITRUM | SCALING ETHEREUM ⁠https://bankless.cc/Arbitrum 🗣️TOKU | CRYPTO EMPLOYMENT  https://bankless.cc/toku ------ TIMESTAMPS 0:00 Intro 3:51 Slaughter 4:14 Ex-SEC & Ex-CFTC 6:52 Is D.C. Out to Get Us? 7:50 (Loper Bright) Chevron Deference 22:56 Arbitrary & Capricious  26:00 Impact of Shift in Power  32:04 Summary So Far 37:57 Different Framing Argument  41:12 Congress Not Doing Their Job?  47:46 Good For The Left? 51:06 Crypto Implications  55:04 Enforcement Action 56:53 The New Power Fight  58:18 Closing & Disclaimers    ------ RESOURCES Justin Slaughter https://x.com/JBSDC   ------ Not financial or tax advice. See our investment disclosures here: https://www.bankless.com/disclosures ⁠ 

Bank of this 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 it 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 Cracken, our preferred place to buy crypto in 2024. If you do not have an account with Cracken, consider clicking the links in the show notes getting started with Cracken today. If you want a crypto trading experience backed by world-class security and award-winning support teams, then head over to Cracken, one of the longest standing and most secure crypto platforms

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while Toku handles the logistics. Token launches don't have to be complicated. Talk to Toku today to get a free initial token valuation. Bagless Nation today, we're talking about the Chevron deference case. If you're not educated on what that means, we'll describe it here today. the question on our minds. Is this good for crypto? Is this good for the United States? Or is it this giant tradeoff 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? Your 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's 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 not going to, you know, dissuade you that knowledge. It sounds like a meme coin, and that's, you know, can be bullish in this industry. And also, let's get something else 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 administration. state. So what were you doing over there? And why'd you come here? Why'd 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, didn't really love the big law lifestyle. Moved over to the Hill back in 2012 to work for then-Congersman Marky 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. I didn't buy any. I regret that.

But kept following it and moved over to the Senate with my boss in 2013, sorry, he's a general counsel, moved over to CFTC to work for a commissioner in 2014. It was there when I was working for her, Sharon Bowen, great commissioner, that CFC held Bitcoin as a commodity 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,

Alston Harrow, and 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 Erism, Matt Wong,

Dan Robinson, a lot of Palmetto, and been here now two and a half years and just having a blast. Yeah, you still enjoy it? No regrets? Of course. Zero regrets. Best one we ever made in my life. And on the CFTC side, so we had Timothy Massid on the podcast talking about state

former chair. Yeah, did you know him? Did you interact with him at all? 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 a 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, you know, rather than have the two of them be able to speak ever. So love Tim, talked to him a few weeks ago, a great guy. Interesting. So you were like a crypto bridge then. You were like bridging the information over, I suppose. I'm a bridge in everything, right, former Hill, crypto VC, SEC, FTC. And I come from the event to tell you, D.C. is VEP. If you need a paradigmic sense of how D.C. works, it is V.

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 D.C. is thinking about crypto, even everyone in every Fenerg agency is thinking about crypto. Are there people in D.C. 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 it's one lumbering behemoth that is clearly going in one direction of 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.

Let me just set up this episode with some backdrop. So the U.S. 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 nudes. So we're not going to talk about Trump versus U.S. 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 threat that it could trigger a sea change in all regulations, crypto and outside it, is this lober bright case.

And some people may have heard it called Chevron deference, the Chevron deference case. In fact, we had a Tradfai, Wall Street representative, Sam journey in on recently on bank lists. He told us about this. He said, this is coming. This is something that most people in crypto aren't paying attention to, 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 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 Gary Gensler and this strikes right at the Gary Gensler's 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 nuclear like meltdowns and reactor cores and all sorts of bad things. So I think here we're trying to find out the truth, Like, is this good for crypto? How good? And, like, are there some tradeoffs here? So maybe we could start the conversation.

Can you just tell us how we got here? Yeah. 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, et cetera. All right. So forgive me on this. It can 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 U.S., 1789 of Constitution. So we in the U.S. had initially a pretty small government. We had in the Constitution of Congress, we had an executive branch, we had led with 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 U.S. 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. Security's 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 that 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. I 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 administrator. power to stop it. But it took a president to do that. So FDR, as heterodox and farcite 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 the report in the early 40s. It was derailed by the Second World War, and after World War II, 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 rule so far? I think you've certainly discussed comments. Yeah, we have.

I know you have done them. IRS commentary, for one. Do you remember there, ridiculous kind of like rule set that they were proposing? And like, yeah, we encourage 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? Yep. 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 APA. 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, you know, 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, right, 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. The left, Democrats, progressives. I mean, I think they were called progressives today. They were called progressives in the 1910s. I identify as a progressive, but like back in the 1960s, they were neotenous liberals. So liberal progressive, interchangeable. So conservatives, however, at this point, especially in 1960s and 70s, largely dominated in national elections. And so they were more likely to have the administrative

agencies under their control. You know, you had the Nixon years you had, then. and 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 Council 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're saying, 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's they 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 agency deciding where their statutes begin and end and what powers they can take. But, you know, of course, over time, people start to get concerned about this as well. For one thing, conservative to 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.

You know, 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? Like, 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 Humphreys Executor is still good law. Humphrey's 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 in Supreme Court and the much like in a lot of law, the individual case doesn't matter that much, right? You know, 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 seven hundred dollars a week or something to have a regulator on their own boat and modern their law and the argument was this is not rational this is not realistic and so they sued they got in court and then last i want to add that like the cost of this of the uh oversight on the boat was like prohibitive for so many like captains

and sailors and so like the reason why they went to court is because like it was imposed upon the agency to like end up like 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 6.3. You have all the six Republican appointed justice is saying they vote in favor of this, and the three Democratic point of 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 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- This is, 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. That's effectively what they're saying. Like, 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. He said that many, many times.

And this is what happens, right? Just as Sonia Sotomayor, is talking with the plaintiff's lawyer, Paul Clement, a great lawyer, I think he was former Solicitor General, which is the top appellate lawyer in the government, and asking him, you know, you're talking about Gridlock from Chevron, what do you mean? And he said, you know, no, what I'm saying, I'm quoting now, is Chevron is 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 Chair Gensler being sort of arbitrary and capricious. 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 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 why Chevron deference 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. 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, you know, 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's 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 in into, maybe it was, was it the Bitcoin ETF? I think 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, did you say? 1946. Okay. And that's what, so the SEC has been accused by courts of being, of basically breaching the 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 a minister of 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 no most judges are not going to be experts and 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 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 be reasoned to not be arbitrary and capricious. Politicians, in their infinite wisdom, is it represented, you know, representing the people who voted them at office, they can decide for whatever reason to take a vote. And that's good and that's fine, because they'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 regulars 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, you know, what does this all mean, I suspect? And just to really lay down the punchline. Like, the reason why we are talking about this is because this is overturned. 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. 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 and 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. On one hand, the argument is this is good. It will reduce misuse 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 several can't do things and Congress couldn't do things and the court can 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, 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 pass 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 Ginsburg, 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 move 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 it. 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 22, 19 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 in the U.S. is basically sentenced to a sclerotic existence. new projects are coming online to the Mantle Layer 2 every single week. Why is this happening?

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Okay, I want to try and do my best to kind of like define the landscape that we're all talking about that has been like evolving over the last like 40 years or so. We have this thing in America for all the European and Asian listeners called separation of powers, checks and balances. 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 Gensler's, the SECs, the EPAs, the FDICs, the ABCDs, like whatever. any sort of like agency. And I think that's the bull case, the good case for this is like we have this fundamental problem in state of like this like kind of like last mile problem of as like we grow in

populace as we grow in like technology. Like things get really complex. And so we need to have like 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. Like that makes sense. Some like researcher person to be in the EPA and they'll just write the rules. And that'll be good. Let's have like the nerds run agencies. Classes and pocket protectors, right? Exactly. Yeah.

And like hopefully they. write good laws, they'll figure out how to manage well. But then, like, 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, like, does Gary Gensler want to promote Gary Gensler, or does he want to appropriately and effectively govern capital markets? Like, I think that, from 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 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 comes into comes into a cancer and this is where you get like the eric for he's types which is like you know 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 uh 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 like all kind of unsure of as to how this whole thing plays out. But that's where we are. How is that for like the whole summary of like all of this? It'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, depending 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, you know, we don't have any rules, right? 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.

It's, 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 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, you know, can't focus on 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 if we can't do regulations.

What does this sound like? This is exactly what the SEC's 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, you know, 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. They're trying to comport quasi-regatory actions and enforcement actions on novel spaces. So here or two, 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 or actually a little. allowable. And I tend to think they are not under this doctrine we're seeing in Loper Brighton, 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, like, kick the tires and give me a grade on it. One framing for like this spectrum of like 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, well, of course we want, 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 fill in very proactively make rules where they didn't need to make rules. And that's really just like, it's tucking the oxygen out of like startups and things. And then on the other on the flip side of things, you have courts who are like 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 like allowing for avoids to like hopefully be filled by like the market and startups and like 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 at framing. 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 power of the courts on the left, people who want power of the agency from 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. And it'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 white spot of the people,

not just the usual people who come from Capitol Hill, which I did, but people who've never set foot to 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 U.S. Senate. It really just 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.

You know, 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. And when government is at its best, it has views from many, many people. It's a big tent that takes to kind of everybody. And I would dare say that's kind of the small liberalism that even, you know, 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. where 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 like the Bears and the Bulls, is that we have hit sort of peak Gary Gensler, haven't we,

in like 2024 and 2023, because Gary Gensler has been significantly defanged on the back of the overturning of Chevron deference, 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 a tragedy, maybe on kind of the left, I think you have to acknowledge that like power corrupts over time. And like, 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 of 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've moved from technocrats filling these rules 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 less in money. It's a lesson in economics. It's a less in 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 a Hester Purse 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 FDX happens, right? It calls the administrative state and, you know, the regulators to task and has this whole, you know, showman like testimony in front of Congress and blames them for like not doing And I'm like, Congress, it's your job.

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? I mean, it's all true in many ways. What I would say is like, 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 U.S. 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 on either side. That then led one party to respond and to kill the filibuster for those nominations. 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 going to look at both parties. But the same time, I will note, I was at the SEC, 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 to the members, and they're paid very little. So as a result, people don't stay in Congress very long. The staffer class leaves and becomes lobbyists or other jobs. So you've got an attrithing of knowledge. They close down some areas in Congress in terms of power. And it's become a job that's more in many cases, and 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 any cases.

And I think that is the real lesson of all of this. There's no shortcuts in policies, right? We see it with crypto, there's no like 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 the 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. 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 1 in the Constitution, not the executive branch is Article 2, not the Judiciary Article 3. 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 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 a state is generally viewed as a bit more left-leaning, at least the Gary Gensler's of the world, and particularly it's under a Biden administration. But you can imagine a world where, let's say, like, the Republican presidential nominee wins and just like deletes everybody, just like basically goes through and fires everyone

and replaces them with right-leaning, like people who are in these heads of various administrations who are very much towing a party line and not neutral at all. They're like politicians, not technocrats at all. How bad would that be for the left? And it's kind of like this argument of like 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 the Elizabeth Warren.

I think you painted a counterreaction of things. of somebody on the left who is like, hey, we don't want Trump to have this administrative, uh, administrative state power. This is actually a good thing for the left because it restores balance. Is there anything to that? I think so, 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 is we're going to run the government and 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 that would 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 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 spring court because it'd become even more unbalanced. If you had a court that people felt was not biased in one direction, there would be a lot less agitda about this decision. Yeah, that makes sense to me. Okay, well, let's close this out and talk about the implications for crypto. And Bologi put together kind of like a bullcase tweet for Chevron, deference being overturned.

And he was very bullish on net news 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 new. 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 U.S. or not. But I know it's good for crypto. At least I'm pretty sure it is.

because our big request from the U.S. government is just like, let us do some stuff. Give us a sandbox if you'd like, but just like we're developing, you know, 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, uh, the SEC going to like withdraw all, you know, of its cases against consensus and uniswap and cracking and coinbase and we're all going to live happily ever after? Or like, uh, yeah, what's, what's the take for crypto? So in the short term, I don't think much changes because Gary's still the chair. And I love him or hate him. Gary never backs down. That is his calling card. except for the Ethereum META? Well, yeah, 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. You're not going to get to a regime of sensible regulation through the courts, through Rifle Shaw. That was what I think the judge, Amy Berman Jackson said on Friday night in the finance case.

that it seems strange to do this system of regulation through all these individual rifle shot cases when there's hundreds of thousands of tokens. So my hope in the short term is this kind of refocuses a lot of attention, especially among Democrats, that, okay, you can't get this, you know, 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 contrabology 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 it'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 functionally exist, the more we can create a system of 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 loss regulatory powers, which again, hard to see that happening more on 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 in and exercising its like power through enforcement. 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. I still know a lot of people who are both diehard crypto Democrats and die hard 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 than enforcement actions. And I mean, what I said is, you know, that's 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 though 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 moment. 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-facedless or shadowy super regulator. 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. Yeah. All power. flows from the ballot box in America. When you show that you have a voting block 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, you know, 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. I got another civics lesson and it's been fun, actually. I didn't use 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. It's great. Love talking about this stuff. Make this nation, got to end with this, of course, you guys know crypto is risky. So is politics or our court cases, I suppose, from time to time, but I think we won this one. You could lose what you put in, but we're 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.