WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Consumer Financial Protection Bureau v. Community Finance Services Association, a case in which the Court is considering whether Congress’s chosen method of funding the Consumer Financial Protection Bureau violates the Appropriations Clause of the Constitution, Constitutional Accountability Center Senior Appellate Counsel Brian Frazelle issued the following reaction:

Today was a good day for the CFPB and the consumers it protects. Under skeptical and sometimes frustrated questioning from Justices across the ideological spectrum, the CFPB’s opponents were unable to provide a coherent explanation of why the Bureau’s funding violates the Constitution. Nor could they explain how the limits they want to impose on the Bureau derive from the text of the Appropriations Clause, or how those limits are consistent with historical practice dating to the founding. As Justice Barrett observed, the Bureau’s challengers have offered no clear standard in the Constitution’s text for the judicially imposed restrictions they are advocating, and as Justice Kavanaugh repeatedly noted, Congress can alter the CFPB’s funding at any time. Much of the oral argument focused on how funding mechanisms like the CFPB’s date back to the nation’s beginning, revealing that the Bureau’s challengers are “flying in the face of 250 years of history,” as Justice Kagan put it. Indeed, as our amicus brief for professors of history and constitutional law uniquely explained, the nation’s very first agency, the Customs Service, was a powerful law enforcement agency with a stable funding source provided in the statute that created it—just like the CFPB. This example and other historical analogues we provided were discussed extensively during today’s oral argument.

In the end, as our brief also describes, the Appropriations Clause was adopted to limit the executive branch by ensuring that the people’s representatives in Congress decide how government activities are funded. As we emphasized, and as Justice Jackson powerfully drove home at argument, the Clause was not adopted to empower judges to second-guess the legislature’s funding choices.

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Resources:

Case page in Consumer Financial Protection Bureau v. Community Finance Services Association: https://www.theusconstitution.org/litigation/consumer-financial-protection-bureau-v-community-finance-services-association-of-america/

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

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Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.

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