Cramer: This Looks Punitive, Not Practical

Editor's Note: This article was originally published at 7:30 a.m. EDT on Real Money on July 23. To see Jim Cramer's latest commentary as it's published, sign up for a free trial of Real Money.

NEW YORK ( Real Money) -- What do the regulators really want banks to be doing? From the looks of things, it just wants them to be banking!

Just this week we learned about how the Federal Reserve is looking in to the ability of banks to stockpile and trade physical commodities. So is the Commodity Futures Trading Commission, according to today's New York Times. That comes on top of last week's story about how the Federal Energy Regulatory Commission is fining JPMorgan Chase ( JPM) for energy trading.

Notice I didn't say "illegal" energy trading, as I am not sure what is legal or illegal in energy trading. However, it's pretty sure that FERC is making it up as it goes along, something that is certainly within the bailiwick of a regulator.

Concerning commodities trading and stockpiling by banks -- this business is, again, totally legal, and no one is disputing it. Suddenly, though, the Federal Reserve has decided it might be too risky for banks to perform. That's unless the Fed just doesn't like it from the point of view of the consumer and is trying to kill it, though I doubt that theory holds much water.

In the meantime, the endless drive for banks to raise more capital has crimped earnings and created a bizarre world where a surfeit of capital is bad news for earnings, because there's no higher-yielding place to put the stuff.

So the regulators want the banks to raise capital, still, even at the cost of potential new loans -- because we can't have both at the same time. They want to discourage energy trading. They want to discourage -- or they wouldn't be looking at it -- commodity trading.

They just want banking.

Now, what's so ironic in all this is that there's an undercurrent here that anything can be justified in the name of "too big to fail." Any rules that cut back on anything risky can be justified as a way to cut down on the ability of banks to fail.

What's so amazing, though, is that none of these issues is at the core of what causes or has caused investment banks to fail. It's not commodities, or energy trading, that we need to worry about. It is the derivatives market that poses the most fundamental risk to banks, and it's there that the banks have fought tooth and nail to keep disclosure to a minimum, in part because that's where the money is. The less regulation, the more you can charge the customer and get away with it. Yet the book of derivatives has been instrumental in bringing down every bank that did fail, with the possible exception of the banks that did "low- and no-doc" and "no money down" mortgage lending.

I don't know what will come of all of this. I do think the banks trading energy will pull back from that market, because the fines are huge and the infractions seemingly totally legitimate. Who can possibly navigate those waters safely?

Can the Fed decide that a business it has blessed forever -- commodity trading -- suddenly be placed off limits? That's almost a confiscation, for heaven's sake, as this has been a totally legitimate and up-and-up business for years and years for these companies.

Nonetheless, it shows regulators' powerful reach when it comes to banking. They can do whatever they want -- except to the derivatives markets, the one area that truly is responsible for the failure of banks that were too big. There they are toothless, and it is there that they need the real fangs. Everything else, to me, is just punishment for the past, not contingencies for the future. In other words, it's all punitive but not practical and, at this point in the game, I will take practical over punitive any day of the week.

At the time of publication, Action Alerts PLUS, which Cramer co-manages as a charitable trust, was long JPM.

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