...what?
The buttonwood agreement (founding doc of the NYSE for those unaware) was just was a simple agreement among 24 stockbrokers in NY. It didn't have anything to do with the oversight or governance of the NYSE itself beyond these 2 specific things-- brokers would only deal with each other, and commissions were to be 0.25%. That's it.
It had literally nothing to do with the US constitution, nor would anything in it have any bearing on what is constitutional or not.
Perhaps you're misapplying the historical standard the supreme court is currently using in 2nd amendment cases? Even then that would be wrong both because there's no equivalent to the 2nd amendment in the constitution for securities (on the contrary they make it very clear in the commerce clause that regulating such commerce is specifically allowed to the federal government- which is why the SEC in and of itself is absolutely constitutional no matter what you think of its policies today), and because unlike the historical references using in the 2nd amendment cases, the Buttonwood agreement wasn't an actual law anywhere.
Yeah- they can't though. Again Buttonwood isn't actually a law... at all... and it has zero content about enforcement of anything beyond being agreeing not to buy/sell except between brokers-- and the fixed rate of commission (and the rate thing went away in 1975). You can do all the fraud you like under Buttonwood as long as it doesn't break those 2 rules... (nor is there even a fine, or any other consequence, listed for breaking the 2 rules it DOES have)
The entire reason the SEC was created was people were doing a LOT of securities fraud and existing regulation (such as existed at all typically at the STATE LAW level, not an old gentleman's agreement with no enforcement or penalty) was not preventing it very well.
Even before the SEC, SCOTUS was very clear regulation of this stuff was a valid government action- see for example Hall v. Geiger-Jones Co where Justice McKenna writes such state laws are aimed at fraud and that "the prevention of deception is within the competency of government"
As those state laws proved insufficient in light of the market crash, we got the Securities Act a few years later to initiate regulate original issue of securities across state lines under the power of the interstate commerce clause, and the next year the Securities Exchange Act to regulate secondary trading of same. The original law had the FTC as its enforcement agency, the second act created and transferred that authority to the SEC.
Anyway-the entire point of the ruling in Jarkesy is that things like securities fraud charges that carry fines from the SEC must be heard by federal courts---with a right to a jury available-- not the internal administrative judge ones the SEC was using because they're much faster and more directly familiar with the specific subject matter.
There was no question at all in the case regarding the constitutionally of the SEC to regulate securities in general, let alone to even exist. Nor was there such a question in the case that ended Chevron.
