“On this date, the CFTC stated, ‘In the Order, the CFTC for the first time finds that Bitcoin and other virtual currencies are properly defined as commodities.’
This puts the U.S. government in a tricky position if the SEC were to suddenly claim cryptocurrencies as securities, as it would negate the regulatory authority already claimed by the CFTC.”
That is not correct. First, it is entirely possible for different federal agencies to have different views of a a legal issue. If that happens, sometimes they will get on the same page (particularly if the DOJ gets involved in both disputes). Sometimes they will not. Then the courts will have to make a decision. But, in this case, it wouldn’t “negate” the regulatory authority of the CFTC. At most, it would put the issue under the SEC’s jurisdiction.
Second, you seem to be under the impression that a crypto-asset cannot be both a security and a commodity at the same time. The Seventh Circuit disagrees: “The dispute arises primarily because GNMA’s are both ‘securities’ under SEA § 3(a)(10), 15 U.S.C. § 78c(a)(10), and ‘commodities’ under CEA § 2(a)(1), 7 U.S.C. § 2.” Board of Trade of City of Chicago v. SEC, 677 F.2d 1137, 1142 (7th Cir. 1982).