Comment Text:
I previously submitted another comment, but in light of the recent Supreme Court decision overturning the precedent commonly known as “Chevron deference”, I feel the need to add the following supplementary argument. For those unaware, Chevron deference is a previous Supreme Court precedence which provided deference to government agency experts to interpret ambiguities in the plain text of the law for enforcement purposes. It gave agencies such as the CFTC authority to do things like define terms in the law as trusted experts in what Congress intended. This precedent was recently overturned, removing this authority from the CFTC, rendering their internal rules and policies moot in any court of law. Courts will interpret the actual text of the law on their own merits, not supplemental agency decisions and rules about, for instance, how to define “gaming”. Following this Supreme Court decision, the CFTC’s proposed rule no longer has any force of law. The Supreme Court has made it clear that the plain text of enacted legislation should be interpreted by the courts, and is not subject to further interpretation by unelected agency officials.
As such, any attempts by CFTC personnel to implement or enforce such a rule are an obvious waste of taxpayer dollars. In addition to the effort expended by civil servants to actually continue with hearings, enact the rule, and communicate and enforce it, they open the agency up to systematic risk of lawsuits, whereby the failure of one agency “rule” to be upheld in court will be an open invitation to all previous violators of the same rule to challenge their violation and be entitled to compensatory damages or settlements. This is especially true in light of the fact that the proposed rule is already seeking to control activities which have already been tried in the courts recently, and which were decided against the CFTC.
Agency efforts would be much better spent referring any important ambiguities in actual enacted legislation to congressional staffers so that elected members of Congress can enact legislation that has the effect of law. At a minimum, I would expect the CFTC to make clear, publicly, in writing, why it is choosing to continue a policy of writing internal rules that have no force of law instead of focusing on its intended charter to enforce violations of the plain letter of the law.
