Rule of Law

Opinion | The Consumer Financial Protection Bureau’s funding is constitutional

In his Oct. 1 op-ed, “Diminish Congress’s taste for diminishment,” George F. Will urged the Supreme Court to affirm a decision from the U.S. Court of Appeals for the 5th Circuit that invalidated funding for the Consumer Financial Protection Bureau (CFPB). This decision is contradicted by constitutional text, historical practice and judicial precedent, including recent rulings by the 2nd CircuitD.C. Circuit and six other federal courts.

Congress authorized funding for the CFPB separate from an annual congressional appropriations process, as Congress has done at times throughout U.S. history and across our government, including for the U.S. Mint (est. 1792), Office of the Comptroller of the Currency (1863), Social Security (1935) and Medicare (1965). Funding for these agencies is legally indistinguishable from the CFPB’s, so if all CFPB actions are unconstitutional — as the 5th Circuit recklessly asserts — then all actions from all agencies of this kind are unconstitutional. This is particularly concerning for the Federal Reserve System (1913). Its board, a federal government agency, has the same funding source as the CFPB: assessments on regional Federal Reserve Banks. Someone would be certain to sue to terminate the Federal Reserve System, which serves as a linchpin of our global economy.

Though the 5th Circuit promises its ruling pertains solely to the CFPB, this is as reassuring as an arsonist claiming your office building won’t be affected when he incinerates the adjoining building.

Mitria Wilson-SpotserWashington
The writer is vice president and federal policy director at the Center for Responsible Lending.

George F. Will argued that the Supreme Court should hold the Consumer Financial Protection Bureau’s funding unconstitutional to “strengthen Congress.” This is an Orwellian claim if ever there were one, because such a decision would strip Congress of a power it has exercised since the nation’s founding.

Mr. Will quoted the language of the constitutional provision at issue, which provides that “no money shall be drawn from the treasury, but in consequence of appropriations made by law.” But he failed to meaningfully engage with those words or why they are in the Constitution.

The appropriations power developed in England, and later in America, as a tool of legislative supremacy, giving the people’s elected representatives complete discretion over government spending. By requiring “appropriations made by law,” the Constitution simply requires Congress designate a purpose for money in a law that is passed under the normal process for enacting legislation. That’s what Congress did when it passed the law establishing the CFPB and gave it a stable source of funding.

Mr. Will wrote that “if properly decided against the CFPB, this case will demonstrate that when the court energetically … enforce[s] the separation of powers, it often enlarges not its power but that of Congress.” But, in this case, such a decision would do just the opposite, giving unelected judges a new power to second-guess funding decisions made by the people’s representatives.

Brianne GorodWashington
The writer is chief counsel at the Constitutional Accountability Center and filed an amicus brief on behalf of professors of history and constitutional law in the Supreme Court case being discussed.