Rule of Law

RELEASE: New CAC Amicus Brief on Behalf of Professors of History and Constitutional Law Shows That the Fifth Circuit’s Ruling on CFPB Funding Is at Odds with Constitutional Text and History

WASHINGTON, DC – Earlier today, the Constitutional Accountability Center filed a brief at the Supreme Court in CFPB v. Community Financial Services Association of America. Filed on behalf of scholars with expertise in constitutional law and early American history, the brief examines the text and history of the Appropriations Clause and shows that the Clause, properly understood, imposes none of the limits on Congress’s decisions about how to fund federal agencies that were the basis of the Fifth Circuit’s decision. Indeed, as the brief also shows, Congress has given agencies funding like the CFPB’s since the Founding.

CAC Senior Appellate Counsel Brian Frazelle said:

Without even attempting to ground its ruling in the Constitution’s text, the Fifth Circuit decided that Congress violated the Appropriations Clause by giving the CFPB a dedicated annual budget in the law creating the agency, instead of funding the agency from year to year in annual appropriations bills. This activist decision has no basis in the text or history of the Constitution. The Appropriations Clause was meant to ensure that the people’s elected representatives in Congress—not the president, and certainly not appointed judges—have the exclusive power to decide how the government’s money is spent. The Clause allows Congress to control the executive, it does not allow judges to control Congress. At the Founding, as today, to “appropriate” money “by law” simply meant to pass legislation that authorizes spending on particular activities. That’s what Congress did when it passed the legislation creating the CFPB. And Congress has been employing funding mechanisms like the CFPB’s since 1789.


Amicus brief in CFPB v. Community Financial Services Association of America:

Brianne J. Gorod, Brian R. Frazelle, & Alex Rowell, As Wrong as It is Dangerous: The Fifth Circuit’s Decision Holding the CFPB’s Funding Structure Unconstitutional,

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