Fun story, it literally doesn't matter what Mr Gensler says or doesn't say, the related law exists on paper. Gensler doesn't make the rules. The SEC is tasked with enforcing the rules.
If your company wants to know what is and isn't a security, that's up to your legal department to put together a working theory, one you think could win in court if the SEC sues you. Judges are the only people who get to clarify law without writing new law.
Gensler could be fired tomorrow and the only change would be the case getting dropped, but that wouldn't make Coinbase and others compliant, any different than states with legal marijuana are compliant with the law.
The very first sentence of that executive summary actually lays it out nicely: The SEC is bound by the law that congress writes, including the laws around securities. Gensler can only make rules that are in alignment with the relevant laws. The Howey test and securities laws are actually pretty much out of his jurisdiction, and more importantly, his individual and personal opinion about whether or not BTC or ETH are securities literally doesn't matter.
This is just the reality of operating in a grey area. If you believe you are in compliance with the law, and the regulators disagree or otherwise are giving you a hard time, then the matter WILL be settled by the courts or congress. Importantly, if Gensler comes out tomorrow and says "No tokens are securities, trade anything you want, we won't go after anyone", that isn't binding, and it doesn't change the law, and the next head of the SEC is still free to take you to court for being in violation of the law.
Granted the the SEC is bound by federal statues, but they have certain rulemaking authority within those statues, and it's not wrong to say they create (administrative) laws.
True, administrative laws are not permanent, but when they want to change things, they need to follow a certain process under the APA. Particularly relevant to the case at hand, where Coinbase argues that the APA process needs to be followed - https://assets.ctfassets.net/c5bd0wqjc7v0/5PWsXaPsqQ61gA9wlF...
If your company wants to know what is and isn't a security, that's up to your legal department to put together a working theory, one you think could win in court if the SEC sues you. Judges are the only people who get to clarify law without writing new law.
Gensler could be fired tomorrow and the only change would be the case getting dropped, but that wouldn't make Coinbase and others compliant, any different than states with legal marijuana are compliant with the law.