What's Left but Enforcement Actions?

21 Pages Posted: 17 Jul 2024

See all articles by Todd Phillips

Todd Phillips

Georgia State University - J. Mack Robinson College of Business

Date Written: July 12, 2024

Abstract

With recent opinions, the Supreme Court has made legislative rules--rules that carry the force of law and frequently are promulgated pursuant to notice and comment--less valuable, more onerous to enact, and more likely to be overturned by the courts than in years prior. And because other ways for agencies to make policy exist-primarily, by bringing targeted enforcement actions and developing the law piecemeal in case-by-case adjudications-why would they write rules that are difficult to promulgate and will not receive deference unless absolutely necessary?

This essay argues that the Court's recent administrative law jurisprudence incentivizes agencies to forego creating legislative rules and simply bring enforcement actions, and explains how such a result is detrimental to the public interest. It concludes by using the example of the federal securities laws application to crypto assets-and the Securities and Exchange Commission's inability to promulgated regulations defining the laws' scope-to demonstrate the effects that agencies' inability to enact regulations places on regulated industries.

Suggested Citation

Phillips, Todd, What's Left but Enforcement Actions? (July 12, 2024). Available at SSRN: https://ssrn.com/abstract=4892950 or http://dx.doi.org/10.2139/ssrn.4892950

Todd Phillips (Contact Author)

Georgia State University - J. Mack Robinson College of Business ( email )

P.O. Box 4050
Atlanta, GA 30303-3083
United States

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