Regulating Through the Back Door at the Commodity Futures Trading Commission

This paper looks at how the Commodity Futures Trading Commission (CFTC) has implemented its mandate under the Dodd-Frank Act. Although the CFTC has imposed many regulations through notice-and-comment rulemaking under the Administrative Procedure Act (APA), it has also used other methods — such as staff letters, guidance, and enforcement actions — to impose binding obligations on regulated persons. These other methods arguably violate the APA and make it more difficult for the public, Congress, and the courts to hold the CFTC accountable for its actions. Even the CFTC's own commissioners are excluded from important policy decisions. As a consequence, the CFTC compromises its ability to regulate effectively