Kofi Ndaikate has built a reputation as a leading voice in the high-stakes arena where financial technology meets federal oversight. With a deep background in blockchain and regulatory policy, he has watched the shifting tides of the “administrative state” more closely than most. Today, we are exploring the implications of the Supreme Court’s recent decisions to uphold the power of the FCC and the SEC, even as the court maintains its conservative skepticism toward federal bureaucracy. Our discussion moves through the tactical shift in how wireless carriers may now resist immediate fines, the preservation of the SEC’s most effective financial weapons, and the broader, rigid limits the court has set for future regulatory battles. These rulings represent a complex “technical win” for the government that leaves both regulators and big business navigating a landscape of moving goalposts and hard-fought constitutional boundaries.
The Supreme Court’s recent 8-1 decision regarding the FCC seems to walk a very fine line between agency power and corporate rights. From your perspective, how does this ruling fundamentally shift the enforcement landscape for wireless carriers like AT&T and Verizon?
The landscape has shifted from a one-sided administrative process to a strategic waiting game that heavily favors the deeper pockets of wireless giants. By an 8-1 margin, the court essentially told carriers like AT&T and Verizon that while the FCC can still issue its forfeiture orders, these companies have no legal obligation to pay up until a jury has had its say. You can almost feel the collective sigh of relief in corporate boardrooms where legal teams are now emboldened to treat these fines as the start of a long negotiation rather than a final verdict. It is a nuanced outcome because while the court didn’t go as far as its 2024 ruling in the SEC v. Jarkesy case to dismantle the agency’s internal enforcement altogether, it certainly stripped away the immediate sting of the FCC’s pen. For a regulator, this means their bark remains, but their bite is delayed by the slow-moving gears of the judicial system, requiring much more persistence to actually collect on a penalty.
Moving to the SEC, the unanimous 9-0 ruling on disgorgement authority appears to have preserved a “potent weapon” for regulators despite the court’s general trend of reining in agencies. How do you interpret the court’s refusal to require proof of pecuniary loss, and what does this mean for cases like the $3 million judgment against Ongkaruck Sripetch?
This 9-0 ruling is a massive victory for the SEC because it keeps the agency’s “disgorgement” weapon sharp and ready for use without the burden of proving that every victim lost a specific dollar amount. In the case of Ongkaruck Sripetch, who was ordered to pay back more than $3 million in ill-gotten gains and interest, the court refused to add a new layer of complexity that would have essentially shielded fraudsters. If the court had required the SEC to prove a “pecuniary loss” for every dollar recovered, it would have created a sensory nightmare of accounting for regulators trying to track every penny in a complex fraud scheme. Instead, the justices stood by the 2020 Liu v. SEC precedent, which limits recovery to net profits but doesn’t force the government to act as a private collections agent for individual victims. It sends a clear, cold message to the markets: if you make illegal profits, the government doesn’t need a victim’s testimony to come and take those millions back from your hands.
Scholars have described these as “small, largely technical wins” for the government. Given the court’s history of curbing agency power—specifically with the end of Chevron deference and the rise of the Major Questions Doctrine—how should we view this moment where the 6-3 conservative majority actually stood behind the agencies?
We should view this as the court drawing a very firm, very rigid box around federal agencies and telling them exactly where the walls are. This 6-3 conservative majority has spent years dismantling the “administrative state,” famously overturning the 1984 Chevron precedent and curbing the power of in-house proceedings, so these recent rulings are more about consistency than a change of heart. As one legal expert noted, the court is essentially telling Congress and these agencies that as long as they stay within the strict, narrow lanes previously defined, the justices won’t move the goalposts just yet. There is a palpable tension here; the agencies are being allowed to do their jobs, but only under the heavy shadow of the Major Questions Doctrine, which gives judges broad discretion to strike down anything they deem of “vast economic significance.” It is a fragile peace, where the Trump administration and liberal legal groups alike found themselves on the same side, defending the basic machinery of government against even more radical shifts.
What is your forecast for the future of federal agency enforcement in the telecom and financial sectors?
My forecast is one of “judicial exhaustion,” where every major enforcement action will be met with a constitutional challenge as a matter of standard business practice. We are entering an era where the 1984 era of agency deference is a distant memory, and every fine or rule will be litigated through the lens of whether it was “clearly authorized” by a Congress that often moves slower than the technology it regulates. For the SEC and FCC, the path forward involves a much higher level of precision; they must act knowing that a single step outside their “rigid limits” will lead to a 6-3 or 9-0 smackdown from a court that is no longer inclined to give them the benefit of the doubt. Expect to see more cases like Sripetch’s $3 million battle, where the government wins on technicalities while the broader authority of the administrative state continues to be chipped away piece by piece in the background. The “potent weapons” of the SEC remain in the arsenal for now, but the rules for when and how they can be fired are being rewritten in every single term of this court.
