Little Power Struggles Everywhere: Attacks on the Administrative State at the Securities and Exchange Commission
75 Pages Posted: 30 Aug 2019
Date Written: August 28, 2019
Abstract
This Article describes the power struggles among the three branches of the federal government and Democrats and Republicans to control rulemaking and other activities at the Securities and Exchange Commission (SEC). Although the SEC was designed to be an independent and non-partisan agency where Commissioners and staff exercised independent judgment and expertise to protect the investing public from Wall Street depredations, partisan struggles have undermined the agency’s work. Instead of protecting the SEC from these ideological power plays, the courts have also upended SEC rules in decisions that appear to be more political than respectful of governmental efficiency and integrity and have resulted in regulatory ossification. Developments that have impacted the SEC’s effectiveness are the imposition of cost benefit regulations, skepticism about deference and the erosion of independence.
Keywords: administrative law, securities law, cost-benefit analysis, best interest rule, agency independence
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