What Rough Beast Slouches Towards Bethlehem : Business Roundtable V. SEC and the SEC's Delegated Rulemaking Authority

In the summer of 1990, the Court of Appeals for the District of Columbia issued Business Roundtable v. SEC,3 invalidating SEC Rule 19c-4 as outside of the Agency's rulemaking authority.4 Business Roundtable was notable when handed down because the decision took place during a pro-regulatory period in which an activist SEC was accustomed to courts sustaining its rules.5 Currently, however, the atmosphere in the public law area has changed, and courts have held the SEC to a textualist interpretation of its authorizing statutes. This trend is most noticeable with respect to private enforcement of the securities laws,6 but other developments suggest that the SEC's ability to promulgate ultra vires rules has also narrowed. This shift in the legal landscape has made Business Roundtable a 'case whose time has come.'