Daniel Kuhn is a deputy managing editor for Consensus Magazine. He owns minor amounts of BTC and ETH.
Binance has “major questions.” Coinbase has “major questions.” Even President Joseph Biden had major questions. What exactly are these “major questions” that keep popping up across the crypto industry, and is it a “legal meme, ”like some people have suggested?
Given that industry participants have been calling for a clear regulatory framework for years, it makes sense that “major questions” arise in the context of crypto. Binance’s U.S. affiliate, for instance, has evoked the doctrine in an"The SEC recently brought several enforcement actions – including this action – premised on its new position that virtually all crypto assets, and virtually all cryptoasset transactions, are securities," a document filed in September reads.
Further, in a novel interpretation that has ruffled some feathers, the SEC said thus far the “major questions” doctrine has only applied to strike down “novel regulatory forays,” and most significantly, novel regulatory forays into areas of major “economic and political significance.” Coinbase, the SEC said, “does not have the vast economic or political significance.”
Freeman intends to appeal the decision, which could help clarify the matter. His major legal argument, which again is in uncharted territory, is that the Supreme Court's decision last year in West Virginia v. EPA “changed the legal landscape” by essentially disempowering federal agencies, so that FinCEN's 2013 interpretive guidance on “virtual currency” should be invalidated.
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