Notwithstanding Chair Gensler's remarks as to valuing public input, Chair Gensler's term at the SEC has been marked by comment periods that are the minimum the law allows, even for very significant rulemaking. When the SEC has made significant changes to a proposed rule, it has generally not reproposed the rule for an additional round of public comment.  

Leaving aside the de minimis time that the SEC has granted for review of proposed rule changes, an even more serious problem…

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Does Ms. Waters criticism work both ways? Should the other party win the election, would Ms. Waters allow President Trump the widest permissible discretion in implementing any new legislation, even where his chosen regulators do not give such legislation the most likely legal reading? (See commentary, in .)

Justice Kagan's dissent rests on two principles that seem to be internally contradictory: (i) the agency's personnel are experts in the decision at hand and (ii) the decision at hand is a policy judgment that is "best left to political actors."  

To demonstrate the internal contradiction, think of the rule makings and proposed rule makings of the SEC under Chair Gensler during the tenure of President Biden. Virtually all of them have gone forward by overriding dissent, in most…