Many statutes require agencies to do some sort of analysis of the costs and benefits of a proposed regulation when promulgating a new or revised regulation. Section 15(a) of the Commodity Exchange Act requires the CFTC to "consider the costs and benefits of the action of the Commission" in light of "(A) considerations of protection of market participants and the public; (B)
considerations of the efficiency, competitiveness, and financial integrity of futures markets; (C) considerations of price discovery; (D) considerations of sound risk management practices; and (E) other public interest considerations."
The meaning of this Delphic reiteration of what appears to be the agency's statutory duty in the first instance will be hotly contested in the courts, as opponents of regulations argue that it requires as close to an exact quantification and comparison of costs and benefits as possible and proponents of regulations claim that it gives the Commission discretion to do anything not unreasonable. The immense scope and novel features of the financial system addressed by the Dodd-Frank Act and the corresponding regulations makes it all but impossible to give the wording of section 15(a) any but the most general meaning. But reasonable judges can, and do, differ, and a long season of litigation seems to await each of the rules before they become final.
Congress cannot be expected to act with the clarity and dispatch of the Executive branch. But before enacting requirements such as section 15(a) in the future, Congress may wish to revisit the wording of the orders from the Combined Chiefs of Staff to General Eisenhower appointing him Supreme Allied Commander on the eve of the invasion of Europe: "You will enter the continent of Europe and, in conjunction with the other United Nations, undertake operations aimed at the heart of Germany and the destruction of her armed forces."
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