Two days after the Senate failed to advance the CLARITY Act, the SEC issued a five-year exemption allowing the issuing and trading of stock tokens. The CFTC followed with its own measures. Now the industry is asking a harder question: will any of it hold?

The exemptions are not theoretical. OXK has partnered with ICE to launch trading in 63 NYSE-listed stocks as tokens. Securitize rolled out 12 tokenized stocks, including Apple, Nvidia and Microsoft. Real capital is now riding on agency paperwork that Congress declined to write into law.

TD Cowen has cautioned that agency rules "are the easiest to rescind" — a warning with recent precedent. Trump-appointed commissioners erased virtually every trace of the Gary Gensler era at the SEC. A 2024 Supreme Court decision, Loper Bright, made courts more willing to overturn agency interpretations altogether.

The durability question is already being tested. A community bank group is suing the Office of the Comptroller of the Currency, arguing the agency exceeded its authority by letting crypto firms obtain national trust bank charters.

To unpack the legal mechanics, we spoke with Yuriy Brisov of D&A Partners. The conversation below is edited for length.

Do agencies have the power to write these rules at all?

They do. The Exchange Act of 1934 gave the SEC rulemaking authority from the day Congress created it after the market collapse of the late 1920s. American legislation works by building a general frame, then letting a watchdog fill in the details.

That design was deliberate, Brisov said. When blockchain tokens arrived, the framework was meant to accommodate the new technology. Rulemaking is squarely within the Commission's powers.

Can a new commission reinterpret everything the old one did? In theory, yes. But the reinterpretation has to fit within an existing body of law.

"Under Gary Gensler, the Commission tried to apply these rules to tokens. It turns out that it failed because there is still vagueness, and many companies left the US market for good," Brisov said.

That failure opened the door for the current Commission to say the old approach wasn't working and offer its own. The power is not unlimited, though. If a rule imposes an unbearable economic burden, damaged parties can sue.

There is precedent. In 2011, the SEC changed how shareholders vote by proxy. The business community objected, calling the rule bizarre and burdensome. In Business Roundtable v. SEC, business won.

What did the 2024 Loper Bright decision change?

Chevron, the famous 1984 case, told courts to defer to an agency's reading of an ambiguous statute. Loper Bright, decided in June 2024, overruled that doctrine.

Courts no longer must defer. "Of course, [the SEC is] a strong authority: Who knows securities laws better than the SEC? But the court should use its own brains and apply the Howey case itself," Brisov said.

Does that make the new SEC rules easier to overturn? In some cases, yes. Courts can now reach different conclusions than the agency.

But challengers face a real burden of proof. They cannot simply say they dislike a regulation. A traditional broker-dealer claiming harm must show the agency did insufficient research and that the rule damages the US market.

On that front, Brisov sees signs of preparation. "Paul Atkins and the SEC have been consulting with many crypto firms, with VCs. They've been doing their research, so it's not something they just came up with within a day," he said.

What if a future SEC wants to reverse course?

Say the rules survive two years and firms pour money into tokenized-stock infrastructure. Could a new SEC simply unwind everything? No, according to Brisov.

Agencies must follow the same logic a court applies — issue, rule, analysis, conclusion. They have to explain. They have to produce economic reasoning and research, and prove the prior approach insufficient, before reaching a different conclusion.

Even Atkins himself operates within those limits. "We could say that Paul Atkins hates the Howey test, and he would have been happy just to abandon it — but he can't do it," Brisov said. "In every note, he keeps repeating that the Howey case still works."

Instead, Atkins interprets Howey case by case, laying out the logic transparently. That discipline is what makes the rules harder to dislodge.

Can you build a business on an FAQ?

The SEC recently issued an FAQ stating that a crypto project buying back its own tokens does not make the token a security. It has also said liquid staking tokens are not securities, and proposed new custody rules.

Here Brisov counsels caution. "If you follow it, and it's created by the people who know what they're saying, probably you will be in the clear. But it's not legislation," he said.

An FAQ carries no formal authority — not even binding force for SEC staff. It is closer to a casebook or an internal manual, and staff rewrite them often.

The SEC rewrote that particular FAQ within a week after a16z's legal counsel flagged a massive loophole in the original text. For Brisov, that responsiveness is exactly how the process should work.

What does this change for builders?

The practical split is now clear. Formal rulemaking — the five-year stock-token exemption, the CFTC's proposed "crypto asset market" registration category and its plan to let registered exchanges offer leveraged trading — carries procedural weight that a future administration cannot casually discard. FAQs and staff guidance do not.

The CFTC has also moved to exempt some crypto software providers from registration requirements entirely, another structural shift running through the same legal machinery.

The live test arrives in court. The OCC charter lawsuit will show how post-Loper Bright judges treat agency crypto decisions, and its outcome — likely within the current enforcement window — will set the template for every challenge that follows.