Lawyer James Burnham speculates the Supreme Court would likely strike down similar securities rules today, perhaps if a challenge was brought before it by a crypto company, without a congressional mandate. But even if a lawsuit reaches the high court, an agency reprimand would already have required a company to spend gargantuan legal fees and endure years of litigation before even the chance to argue the case.
Source: https://www.coindesk.com/layer2/2022/01/23/professor-gensler-gets-an-f-on-crypto/